These two appeals can be disposed of together as the subject-matter in both the appeals is one and the same.
2. The appellant in A.S. No. 875 of 1999 has preferred the appeal challenging the judgment and decree dated 8-1-1997 in O.S. No. 88 of 1992 on the file of Subordinate Judge, Nalgonda. On the other Viand, the appellants in A.S. No. 385 of 1997 have preferred the appeal challenging the judgment and decree dated 8-1-1997 in O.S. NO. 20 of 1990 on the file of Subordinate Judge, Nalgonda.
3. The appellants in A5 No. 385 of1997 are the defendants 1 arid 12 in the O.S. No. 20 of 1990 filed by, the respondents 1, 2 and 3 herein against the appellants along with the respondents 4 to 13 for partition of plaint A and H schedule properties.
4. The first appellant in A.S. No. 385 of 1997 is defendant No. 1 in O.S. No. 20 of 1990 on the file of the Subordinate Judge, Nalgonda. The first appellant in A.S. No. 385 of 1997 is the only appellant in A.S. No. 875 of 1999 and filed the suit. in O.S. No. 88 of 1992 on the file of the Subordinate Judge, Nalgonda against Pullenla Venkata Narayana who is the mediator for the settlement and partition of the land and properties to whom a sum of Rs. 2,25,000 (Rupees two lakhs and twenty five thousand only) said to have been given as security. The suit in O.S. No. 20 of 1990 filed for the partition and separate possession of the plaint Wand B schedule properties was decreed partly. The suit filed on behalf of the first plaintiff was dismissed without costs and the suit filed by the plaintiffs 2 and 3 is decreed entitling them for partition arid separate possession along with the defendants in respect of A and B schedule properties by its judgment dated 8-1-1997, The suit filed by the plaintiff in O.S. No. 88 of 1992 was dismissed with costs.
5. Aggrieved by the said two judgments and decrees in O.S. No. 20 of 1990 and O.S. No. 88 of 1992 on the file of Subordinate Judge, Nalgonda. These two first appeals are filed by I. Swarajya Lakshmi and the adopted daughter I. Usha Sridevi.
6. The first appeal A.S. No. 385 of 1997 is filed against the decree and judgment dated 8-1-1997 passed in the suit O.S. No. 20 of 1990 for partition of the plaint A and B schedule properties.
For the sake of convenience, the parties herein are referred to as they arrayed in the suit.
7. The facts, which can be briefly narrated, that the 1st plaintiff is the wife of late Dr. I. Shyam Sunder and plaintiffs 2 and 3 are minor children of the 1st plaintiff through her husband Dr. I. Shyam Sunder. The 1st defendant who is the 1st appellant herein is the first wife of late Dr. I. Shyam Sunder and the 2nd defendant is the brother of late Dr. I. Shyam Sunder and the other defendants are the members of the joint family of Dr. I. Shyam Sunder. The plaintiffs 2 and 3 are minors who are represented by their mother-1st plaintiff as guardian.
8. It is the contention of the 1st defendant that she is the first wife of late Dr. I. Shyam Sunder and the2nd defendant is brother of late Dr. I. Shyam Sunder and the said Shyam Sunder died on 9-8-1989. Defendant Nos. 3 and 4 are the sisters of Dr. I. Shyam Sunder. Defendant No. 5 is his stepmother, and defendant No. 6 is the stepbrother and defendants 7 to 11 are his step-sisters, they being the issues of defendant No. 5 whom his father Idam Ramulu had married after the death of his 1st wife Venkatanarasamma. It is the case of the plaintiffs that Idam Ramulu had married Venktanarasamma as his first wife and after the death of said Venkatanarasamma, he married Manikyamma as second wife who is defendant No. 5. Defendant No. 6 is the son of defendant No. 5 and defendants 7 to 11 are the daughters of the Defendant No. 5. The late Dr. I. Shyam Sunder and Defendant No. 2 are the sons and Sarojanamma and Laxmamma i.e., D. 3 and D. 4 are the daughters of Venkatanarsamma. Idam Swarajya lakshmi-D. 1 is the first wife and Idam Vani-1st plaintiff is the second wife of late Dr. 1 Shyam Sunder. The first plaintiff has got two sons, i.e., plaintiff Nos. 2 and 3. The late Idam Ramulu has got three sons that is two sons through his first wife and one son through his second wife. The defendants 2 and 6 are the coparceners of Mithakshara Hindu joint family, as Idam Ramulu died intestate. At that time the head of the joint family was the owner and possessor of the plaint A schedule agricultural lands and house property. Out of Idam Ramulus daughters, the defendants 3,4,7 and 8 had been married before his death while the defendants 9 and 10 were married subsequently i.e., before September, 1985. The defendant No. 11 is still remains unmarried. Therefore, under A.P. Amendment to Hindu Succession Act, 1956 by Act No. 13 of 1986, she shall be deemed to be a coparcener of the joint family of late Idam Ramulu and his sons from the date of her birth. The partition of the joint family properties is said to be divided under section 6 of Hindu Succession Act, 1956. The plaintiff Nos. 2 and 3 also became the coparceners of the Hindu joint family along with late Dr. I. Shyam Sunder and they are also entitled for the division of the plaint schedule properties as coparceners. Besides plaint W schedule property, it is stated that late Dr. I. Shyam Sunder acquired plaint B schedule properties with his income from his profession as a Doctor and then he registered the said B schedule property in the name of the defendant No. 1 i.e., who is only a Benamidar for him. The entitlement of the respective shares has been indicated in the plaint to be allotted to certain parties in respect of plaint A and B schedule properties.
9. It is stated that after the death of Dr. I. Shyam Sunder disputes had arose between the plaintiffs and the defendants and all the efforts for settlement of the disputes have been failed and the plaintiffs got issued a notice to the 1st defendant on 1l-l-1990 for partition and separate possession of the properties. The 1st defendant gave a reply and thereafter the suit was filed for partition of plaint A and B schedule properties.
10. A written statement has been filed by the defendants 1 and 2 stating that the 1st plaintiff is not the second wife and the plaintiffs 2 and 3 are not the sons of late Dr. I. Shyam Sunder. It was further contended that 1st defendant is the only widow of late Dr. I. Shyam Sunder and one Kumari Idam Usha Sridevi-12th defendant who is the 2nd appellant herein is the adopted daughter of late Dr. I. Shyam Sunder and she succeeds interest in the properties of late Dr. I. Shyam Sunder. Defendant No. 2 is the only brother of Dr. I. Shyam Sunder and other relationships except the relationship of the plaintiff was accepted.
11. It is stated that Kum. Usha Sridevi being the daughter of Dr. I. Shyam Sunder was not arrayed as party to the suit. Therefore, the suit is liable to be dismissed in limini. It is stated that the late Dr. I. Shyam Sunder and the 1st defendant adopted Kum. Usha Sridevi-12th defendant on 23-31980 when she was 4 Years and the adoption was reduced into writing by registered document Ex. B.11 dated 6-7-1989. In the absence of any evidence with regard to the adopted child who is living in the care and custody of her adopted parents, the lower court disbelieved the said contention. It is further stated that the marriage of the 1st defendant took place with Dr. I. Shyam Sunder in the year 1958 as per the Hindu customs and rituals and they enjoyed their marital life peacefully and there were no issues and they have adopted Kum. Usha Sridevi who is the brothers daughter of late Dr. Shyam Sunder. Idam Usha Sridevi is the daughter of the 2nd defend and namely Idam Murali. It is stated that when Dr. I. Shyam Sunder died his brother performed his obsequies. The 2nd defendant performed all religious ceremonies as per their customs and rites. It is stated that the plaintiffs are no way concerned with the joint family properties and they are not entitled for any partition.
12. In respect of item No. 4 plaint B schedule property is concerned, it is contended that the said property was purchased by the 1st defendant from out of her own funds by selling away the gold which has been given by her parents at the time of her marriage towards Pasupu Kumkuma and subsequently she developed the said property with the finances provided by her parents and the said plaint B schedule property is exclusively her Stridhana property and hence, the question of holding the said property as Benamidar or partition of the said property does not arise. It is stated that the defendants 1 and 12 are alone entitled to succeed the properties of late Dr. Shyam Sunder. Item No. 1 of plaint W schedule property is agricultural land and Item No. 2 is a residential house. Item No. 1 of the plaint B schedule property is a residential house and Items 2 and 3 of the B schedule properties are movable properties.
13. On the contentions and rival contentions of both the parties, the trial court had framed the following issues :
1. Whether the plaintiffs are entitled for partition and separate possession of plaint schedule properties?
2. Whether the defendant No. 1 purchased Item No. 1 of the plaint B schedule properties with her own finance?
3. Whether the defendant No. 1 and Dr. I. Shayam Sunder took one Usha Sree Devi in adoption in the year 1980 and whether it is valid as contended in within the statement of Defendant No. 1?
4. Whether the Defendant No. 1 and Usha Sree Devi are only legal heirs of late Dr. Shyam Sunder as alleged in written statement of Defendant No. 1 ?
5. To what relief ?
14. On behalf of the plaintiffs PWs. 1 to 8 were examined and Exs. A-1 to A-32 were marked. On behalf of the defendants, the 1st defendant was examined as DW.1 and the 2nd defendant was examined as DW.2, and one R. Laxmi Narayana was examined as DW.3 avid Exs. B-1 to B-35 were marked.
15. In respect of issue No. 3 on perusal of oral and documentary evidence the trial court. held that late Dr. I. Shyam Sunder did not adopted Kum. Usha Sreedevi-D.12 as their daughter in adoption in the year 1980 and it is not a valid adoption and the said issue is answered accordingly. So far as issue No. 2 is concerned whether the 1st defendant has purchased the Item No. 1 of the plaint B schedule property with her own finances, the trial court held that the said Item No. 1 of the B schedule properly has not been acquired with her own funds, Accordingly, the said issue was answered against her. So far as Issue No. 4 is concerned it was held by lower court that D-12 is not the legal heir of late Dr. I. Shyam Sunder and so far as Issue No. 1 is concerned it is held that the plaintiffs 2 and 3 and defendants 1 to 11 are entitled to the shares as mentioned in the calculation memo and in view of the findings of the Issue Nos. 1 to 4, the Issue No. 5 was answered holding that the plaintiffs 2 and 3 are entitled to 33/495th share each in plaint A schedule property and 1/3rd share each in B Schedule property, except the X-ray, plant shown as 2(a) of plaint B schedule property. Defendant No. 1 shall be entitled to 33/495th share in plaint B schedule property and 1/3rd share in plaint B schedule property and also entitled to the exclusive property over 2(a) of plaint B schedule property. D-2 to D-11 shall be entitled to 99/495th share of each in plaint A schedule property. Accordingly, preliminary partition decree was passed with costs in favour of plaintiffs 2 and 3 and the defendants 1 to 11. The suit on behalf of the 1st plaintiff was dismissed.
16. Sri D. Prakash Reddy, the learned counsel appearing for appellants vehemently argued that though be has challenged the finding of the trial court as regard to the entitlement of the plaintiffs 2 and 3 as the sons of late Dr. I. Shyam Sunder, but he has fairly contended that there is cogent and convincing evidence to show that the plaintiffs 2 and 3 are born to late Dr. I. Shyam Sunder and therefore, they are entitled to share in the joint family property. It is stated that he has advised his clients as not to press that issue and his clients have accepted for the same. The learned counsel for the appellants laid more concentration on two issues only. Firstly, the learned counsel for. the appellants argued that the trial court erroneously negatived the contention of the defendant No. 1 as regard to the adoption of D. 12 by late Dr. I. Shyam Sunder. He further contended that though specific defence has been taken in the written statement that the plaintiffs failed to implead the adopted daughter and on an application filed by defendant No. 1 only the D-12 was impleaded. Even after-D-12 was impleaded, no evidence has been adduced by the plaintiffs. But on the other hand, the 1st defendant examined herself and stated that her husband and she adopted D.12 in the Year 1980 as per the Hindu Adoption and Maintenance Act, 19,56 after observing all the formalities and thereafter in 1989 the said adoption of giving and taking was reduced into writing and the same was registered. Therefore, there is a legal presumption in favour of the defendants 1 and 12 and the said legal presumption was not at all rebutted by the plaintiffs. The evidence of PW. 1 makes it clear that she has not made anything about the adoption of D. 12 by late Dr. I. Shyam Sunder and D.1, but only in the cross-examination of PW-1, she stated that it is not true to suggest that late Dr. 1, Shyam Sunder and D.1 had adopted D.12 in adoption by a registered document regarding the said adoption, Except the said single sent once in the cross-examination when the question was put to PW. 1 as regard to the adoption of D.12 by late Dr. I. Shyam Sunder and D.1 which was simply denied, neither PW. 1 nor any other witnesses deposed and stated anything about it nor denied made any attempt to disprove that there was no adoption and the said adoption deed is not just and valid.
17. On the other hand, DW 1 in her deposition stated that D.12 is her adopted daughter and was adopted by late Dr. I. Shyam Sunder in the year 1980. D. 12 is the daughter of D.2 and D.2 is the brother of late Dr. I. Shyam Sunder. They have taken the adoption after performing ceremonies as per Hindu Religious Customs and rites. The adoption deed was also registered before the Sub-Registrar, Karimnagar. The said adoption deed was marked as Ex. B. 11. She has also marked Ex. B.2 certificate dated 309-1993 issued in favour of D. 12. As per. Ex. B.2 it is stated that Usha Sridevi D.12 is a daughter of late Dr. I. Shyam Sunder and she is a bona fide student in the school of little Flower Vignana Mandir, Nalgonda during the year 1982-1988 and her date of birth was registered as 10-7-1976. Ex. B. 11 is the registered adoption deed dated 6-7-1989. It is stated that in the said adoption deed Dr. I. Shyam Sunder, his wife DA, the brother of Dr. I. Shyam Sunder-D.2 and the wife of D.2 are the parties. It is stated t hat there are no children to late Dr. I. Shyam Sunder and his wife D. 1, and on the doctors advise that there are no chances of having children and therefore, for continuous succession of the family they have agreed to adopt a female child who is the daughter of the 2nd defendant herein and accordingly the 2nd defendant and his wife agreed for the same. The said adoption took place on 23-3-1980 after performing the ceremonies as per the Hindu Religious Customs in the presence of the friends and relatives. The natural parents had put the adopted child in the hands of the adopted parents and at the time of adoption, the same was written on a plain paper and from the date of adoption the adopted child is with adopted parents.
18. It is further argued by the learned counsel for the appellants that in support of the contentions of defendants 1 and 12, the 1st defendant also produced photographs as Exs. B. 25 to B. 29 and in Ex. B. 26 there is a clear picture of putting the hands of adopted child by the natural parents in the hands of late Dr. I. Shyam Sunder and his wife-D.I. As against the said evidence, absolutely there is no other evidence adduced by the plaintiffs to disprove the said adoption. It is further stated that as per section 16 of the Hindu Adoption and Maintenance Act, 1956 there is a presumption as to the registered documents relating to the adoption. Section 16 reads as follows :
'Presumption as to registered documents relating to adoption.Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.'
A perusal of the said section makes it clear that whenever an adoption deed is registered and produced before the court purporting to a record of an adoption made and signed by the persons giving and the persons taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act, unless and until it is disproved.
19. The 1st defendant had not only produced the registered document but also stated on oath that D.12 has been taken into adoption by herself and her husband and the natural father-D.2 also deposed in his evidence that he has given D.12 in adoption and in support of the said oral evidence, there is a documentary evidence of registered adoption deed particularly Ex.B-11- Therefore, unless and until the plaintiff itself disprove the said factum of giving D.12 in adoption, it is presumed that there is a ceremony of adoption giving by natural parents and taking by the adopted parents. Therefore, the proof of record of an adoption made and signed by the person giving and the person taking the child in adoption, the court should presume that the adoption has been made in compliance with the provisions of the Hindu Adoption and Maintenance Act, 1956.
20. On the other hand, the learned counsel appearing for the plaintiffs submits that even though the plaintiffs adduced no evidence, it cannot be said that the 1st defendant has proved the adoption of the 12th defendant as she stated that she has lost the paper on which the taking of the adoption was written.
21. It is further stated that the said document of the School Certificate-B.2 is obtained only in the year 1993 and there is no proof that the name of Late Sri Dr. I. Shyam Sunder was written as the father of the adopted child-D. 12. Ex. B.2 makes it clear that the adopted child was admitted in the year 1982. In the year 1982 itself the father name of the adopted child was shown as Sri Dr. I. Shyam Sunder and therefore, there is no significance in the contention that the name of Sri Dr. I. Shyam Sunder was not shown as the father of adopted child-DA2. The factum of adoption is not only born out in the School records but also there is an adoption deed and that photographs taken at the time of adoption ceremony are supported by the adoption deed. There is no prohibition to record the ceremony of adoption even at a later date and to register the same.
It is further stated that neither the relations nor the friends or purohith who has performed the ceremony of adoption have been examined and therefore, it cannot be said that the initial burden has been discharged to prove the adoption of D.12. A similar contention of the plaintiffs has been rejected by the Allahabad High Court in a case of Baru v. Tej Pal AIR 1998 All. 230 while dealing with section 16 of the Hindu Adoption and Maintenance Act, 1986 and held that :
'It is thus clear from this section (16 of the Act) that once a registered adoption deed is produced before any court recording the factum of adoption and it is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. The presumption at the first place is conclusive, but it is rebuttable provided the deed of adoption is disproved. Once a registered deed of adoption was filed, the duty was not of propounder to establish the due execution and registration of the deed. In the adoption deed itself it is mentioned that ceremonies for adoption were performed... ' (p. 232)
In the instant case in the adoption deed itself it is mentioned that the ceremony of adoption was performed. The adoption deed was based on the signatures of the natural parents, and late Dr. I. Shyam Sunder and his first wife who is that 1st defendant. Defendant No. 2 is father of adopted child. Therefore, it cannot be said merely because D.2 is the father of the adopted child, he is interested person. There is no reason to disbelieve the version of DWs 1 and 2 who are defendants 1 and 2. Defendant No. 12 is the girl took in adoption, which is evident from Ex. B.26, B.2 and B.11 At the time of taking adoption, the adopted child was only 4 years old and the name of the adopted father was also written in the school records. In such circumstances, the burden lies on the plaintiffs to disprove the deed of adoption and also disprove that ceremonies were not performed. Simply because their close relations, friends and purohit were not examined presumption available and flowing from recitals, the adoption deed cannot be negatived nor it can be disproved that no ceremonies were performed. The purohit, friends and relations could have been examined by the plaintiffs to disprove the presumption available in favour of defendants. But the plaintiffs have not at all made any attempt to disprove the presumption available in favour of the defendants 1 and 12.
22. In the case of Sushil Chandra v. Smt. Bhoop Kunwar AIR 1977 AIL 441 it was held that:
'Section 16 of the Hindu Adoption and Maintenance Act (1956) casts a duty on the Courts to draw a mandatory presumption to the effect that whenever there is a registered document purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, then the adoption has been made in compliance with the provision of the Act unless and until it is disproved.. ..' (p. 441)
The trial court has totally ignored the mandatory presumption, which is to be drawn under section 16 of the Act.
23. In the case of Devgonda Raygonda Patil v. Shamgonda Raygonda Patil AIR 1992 Bom. 189 it was held that :
'...It for the plaintiff who challenges adoption to prove that ceremony of giving and taking has not been taken place.' (p. 189)
In the instant case absolutely no evidence has been led in that respect and the court below has erroneously came to the conclusion that the adoption deed is disbelievable there being no material whatsoever. I am of the view that the court below has not correctly decided this issue.
24. In the case of Jai Singh v. Shakuntala (2002) 3 SCC 634 the Supreme Court held that :
'Section 16 of the Hindu Adoptions and Maintenance Act, 1956 envisages a statutory presumption that in the event of there being a registered document pertaining to adoption there would be a presumption that adoption has been made in accordance with law. (But that) ... statutory provision has made the situation not that rigid but flexible enough to depend upon the evidence available on record in support of adoption. It is a matter of grave significance by reason of the factum of adoption and displacement of the person adopted from the natural succession-thus onus of proof is rather heavy .... it turns out to be solely dependant on a registered adoption deed. The reason for inclusion of the words unless and until it is disproved shall have to be ascertained in its proper perspective and as such the presumption cannot but be said to be a rebuttable presumption ..' (p. 635)
In the said case the registered adoption deed was filed. Basing on the adoption deed, the suit was filed which was decreed and the appellate court also confirmed the decree. But the High Court reversed the said judgment. While considering the question as to whether the High Court was justified in laying the emphasis on the conduct the adopted son and field that no doubt the presumption is rebuttable presumption. The registered instrument of adoption presumably stands out to be taken to be correct, but the court is not precluded from looking into it upon production of some evidence contra the adoption. The evidence, which is made available to the court from rebutting the presumption, can always be looked into and it is on production of that evidence the High Court has recorded a finding of non-availability of the presumption. In the said case the Supreme Court held that the High Court wrongly negatived the adoption and the statutory presumption should give way to all other instances available oil record and the Supreme Court had also confirmed the judgment of the lower court and had also confirmed the said findings. As already stated, in the instant case absolutely no rebuttal evidence has been adduced and the evidence available on record on behalf of the defendants 1 and 12 is sufficient to hold that the said adoption of 12th defendant is legal and valid and therefore, I am of the opinion that the lower court has wrongly disbelieved the adoption and I accordingly set aside the said finding and hold that 12tb defendant is an adopted daughter of late Dr. I. Shyam Sunder and the 1st defendant.
25. Insofar as the second issue is concerned it is contended by the learned counsel for the appellants/defendants 1 and 12 that Item No. 1 of plaint B schedule property is purchased by 1st defendant from out of her own Stridhana property by selling, away the gold which was given by her parents at the lime of her marriage and she alone developed the property. It is further contended that even assuming that the husband of the 1st defendant late Dr. I. Shyam Sunder advanced the sale consideration but still Item No. 1 of the property was purchased for the benefit of the wife of late Dr. I. Shyam Sunder, i.e., in favour of the 1st defendant and therefore, Item No. 1 of the B schedule property is not available to the partition as her husband late Dr. I. Shyam Sunder himself is not entitled to claim the said property.
26. It is stated that under section 4 of the Benami Transactions (Prohibition) Act, 1988 there is a prohibition of the right to recover property held benami.
27. Under section 4(1) no suit, claim or action to enforce any right in respect of any properly 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.
28. Under section 4(2) no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
29. The only exception to lay the suit and claim the property is under section 4(3) where the property is purchased in the name of the coparcener in a Hindu family and the person in whose name the property is held is a trustee of other person standing in a fiduciary capacity.
30. It is contended that the 1st defendant is not the coparcener of the family and it is not trust property, and the property is not standing in the name of the 1st defendant in a fiduciary capacity and therefore, there is a prohibition to file any suit or claim of the said property.
31. On the other hand, the learned counsel appearing for the plaintiffs submits that no doubt under section 3(1) of the Act no person shall enter into any benami transaction, but under section 3(2) of the Act the benami transaction has no application to the purchase of the property 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 his wife or the unmarried daughter.
32. It is stated that under section 3(2) has to read along with section 4(3) and therefore, it cannot be said that no suit lie in respect of the property held benami in the name of the 1st defendant. Under section 3(2) there is no prohibition to purchase the property in the name of the wife and unmarried daughter and once the property is purchased in the name of the wife and the unmarried daughter it shall be presumed that it is for the benefit of the wife and the unmarried daughter, unless the contrary is proved in which it is for the 3rd parties who are claiming the property. The persons who have purchased the property in the name of his wife cannot file a suit and so also the persons claiming the property contending that late Dr. I. Shyam Sunder was a real owner of the property cannot also file a suit. Section 3(2) cannot be read along with section 4(3) of the Act.
33. Therefore, I am of the opinion that Item No. 1 of the B schedule property is the property of first defendant even otherwise, there is no evidence to rebut the presumption. In the case of Kumari Baghyavathi v. Smt. Lakshmikanthammal AIR 1993 Mad. 346 the Madras High Court held under section 4 of the Benami Act no suit to enforce any right in respect of any property held benami against the person in whose name the property is held shall lie by or on behalf of a person claiming to be the real owner of such property.
34. In the case of Mithilesh Kumari v. Prem Behari Khare AIR 1989 SC 1247 the Supreme Court held that the Banami Transactions (Prohibition) Act is apiece of prohibitory legislation and it prohibits benami transaction subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transactions as defined in section 2(a) of the Act. Even if Item No. 1 of plaint B schedule property is held benami in the name of the 1st defendant by her husband the said Act has no application as it shall be presumed that the said property is purchased for the benefit of the wife and therefore, I am of the opinion that the plaintiff cannot lay a claim on Item No. 1 of the plaint B schedule property.
35. Accordingly, the finding of the trial court on issue No. 2 is set aside and concluded that Item No. 1 of the B Schedule property is an exclusive property of D. 1 and the said property is not available for partition.
In view of the aforesaid findings the A.S. No. 385 of 1997 is partly allowed and the judgment and decree of the trial court is liable to be modified. The trial court is directed to pass a preliminary decree keeping the aforesaid findings in view of the fact that D.12 is the adopted daughter of late
Dr. I. Shyam Sunder and D. 1. Item No. 1 of the B schedule property is the exclusive property of D. 1, which is not available for partition. No order as to the costs. The trial court may pass a preliminary decree keeping in view the aforesaid findings within two months from the date of receipt of this order and pass final decree thereafter as expeditiously as possible.
A.S. No. 875 of 1999
36. The 1st defendant in the suit O.S. No. 20 of 1990 filed the suit O.S. No. 88 of 1992 the subject-matter of this appeal stating that she has deposited an amount of Rs. 2,25,000 (Rupees two lakhs and twenty five thousand only) with the defendant P. Venkata Narayana therein a security deposit for the settlement of disputes among the parties in respect of the partition of the suit schedule properties, But the said amount has not been refunded and therefore, she is entitled for a decree of Rs. 2,25,000 (Rupees two lakhs and twenty five thousand only).
37. A written statement has been filed stating that the plaintiff has deposited a sum of Rs. 2,25,000 (Rupees two lakhs and twenty five thousand only) with the defendant for being kept in the fixed deposit in bank in the names of the plaintiff in the other suit O.S. No. 20 of 1990 which was filed for the partition of the suit schedule properties and the said amount was kept in the fixed deposit jointly and the said amount was not in the hands of the defendant and therefore, the plaintiff is not entitled for the recovery of the said amount with interest. The trial court rightly dismissed the said suit as the said amount has been deposited in the names of the plaintiffs in the other suit O.S. No. 20 of 1990 and the suit is not maintainable for the non-joinder of necessary parties who are the plaintiffs in O.S. No. 20 of 1990. It is true that the defendant is only an elder person who came forward to settle the dispute and admittedly the said amount is not in the hands of the defendant and the said amount is in the hands of the plaintiffs in O.S. No. 20 of 1990 and, therefore, the plaintiff is not entitled for the recovery of the said amount from the defendant.
38. It is stated that the said amount of Rs. 2,25,000 (Rupees two lakhs and twenty five thousand only) is in the hands of the plaintiffs in O.S. No. 20 of 1990. In the absence of the said plaintiffs being parties in the suit O.S. No. 88 of 1992, I am of the view that the trial court rightly dismissed the said suit but however if the said amount is in the hands of the plaintiffs in O.S. No. 20 of 1990 it is open for the 1st defendant in O.S. No. 20 of 1990 to make a claim to take the said amount into consideration while passing the final decree.
39. Respective parties shall bear their own costs in the suit as well as in the first appeal.
40. In view of the aforesaid findings the appeal is dismissed. No order as to costs.