| SooperKanoon Citation | sooperkanoon.com/773684 |
| Subject | Property |
| Court | Chennai High Court |
| Decided On | Jan-29-2004 |
| Case Number | O.S.A. No. 131 of 1999 |
| Judge | K. Govindarajan and ;N. Kannadasan, JJ. |
| Reported in | II(2004)BC198; [2005]123CompCas372(Mad); 2004(1)CTC488; (2004)189CTR(Mad)277 |
| Acts | Benami Transactions (Prohibition) Act, 1988 - Sections 3(2); Code of Civil Procedure (CPC) , 1908 - Sections 96 |
| Appellant | U. Bhaskaran |
| Respondent | Bank of India and ors. |
| Appellant Advocate | V. Raghavachari, Adv. for ;Chitra Sampath, Adv. |
| Respondent Advocate | Pais, ;Lobo and ;Alwares, Advs. for Respondents No. 1 and ;Sivasuyambu, Adv. for Respondents Nos. 2 and 3 |
| Disposition | Appeal dismissed |
| Cases Referred | C) and Sarifan Bibi v. Dilwar Hossain |
N. Kannadasan, J.
1. The above Appeal is filed by the plaintiff having aggrieved by the judgment and decree dated 5.2.1999 in C.S.No. 221/1997.
2. The plaintiff married one Jansi Rani, who was originally married to Ramesh and gave birth to two sons, who are defendants 2 and 3. The said. Ramesh died in a road accident and the plaintiff married Jansi Rani on 21.2.1994. According to the plaintiff, his father borrowed money from the 1st defendant-bank and when the plaintiff wanted to settle the said demand made from the 1st defendant-bank, the bank insisted the plaintiff to deposit a sum of Rs. 5 lakhs in the bank and so he made such deposit, in a short term deposit, on 30.3.1994, but in the name of his deceased wife Jansi Rani. On 13.5.1994 she committed suicide and thereby she died. When the plaintiff tried to withdraw the money from the 1st defendant-bank, the bank insisted the plaintiff to produce succession certificate and so the plaintiff filed the suit in O.S.No. 221/1997 for recovery of a sum of Rs. 10,22,000/- with future interest at 18% from the date of plaint till date of realisation and for per permanent injunction to restrain the 1st defendant from disbursing the deposit No. SDR 50/1151, dated 30.3.1994, in the name of Jansi Rani, without reference to the claim of the plaintiff.
3. The said suit was contested by defendants 2 and 3 through their paternal grandfather, contending inter alia that the said money was deposited by Jansi Rani by herself and it is her property and so the plaintiff is not having any right or interest in the said deposit lying with the 1st defendant-bank as the plaintiff is not the husband of the deceased Jansi Rani.
4. The 1st defendant-bank also filed written statement stating that the plaintiff and one Jansi Rani called on the bank and deposited a sum of Rs. 5,00,000 in cash on 30.3.1994. It is also stated that the 1st defendant-bank had received all the monies due under the compromise in C.S.Nos. 263 and 266 of 1977 filed by the 1st defendant. It is also stated that the said Jansi Rani has not nominated any person to receive the proceeds of the Fixed Deposit in case of death or otherwise and so the 1st defendant insisted upon the plaintiff to produce a succession certificate issued by a competent Court to release the proceeds of the said deposit.
5. The learned Judge framed five issues. With respect to Issue No. 1, the learned Judge found that the 1st defendant-bank is liable to disburse the amount due under Ex.B3 deposit equally among the plaintiff and defendants 2 and 3. With respect to Issue No. 2, the learned Judge found that the plaintiff is not entitled to 18% interest as claimed by him and the bank was directed to pay the rate of interest as prescribed by the Reserve Bank of India from time to time. With respect to Issue No. 3 regarding maintainability of the suit, the learned Judge found that the suit is maintainable. With respect to Issue No. 4, the learned Judge found that the plaintiff is the lawfully married husband of Jansi Rani having married her lawfully on 21.2.1994 at Chennai. Ultimately, the learned Judge granted decree declaring that the plaintiff is entitled to 1/3rd share in Ex.B3 deposit and the 1st defendant-bank was directed to to pay 1/3rd share in Ex.B3 deposit with appropriate interest calculated at the bank rate fixed by the Reserve Bank of India and further directed to invest 2/3rd share belonging to defendants 2 and 3 in Fixed Recurring Deposit till the minors attain majority. Aggrieved against this judgment and decree, the plaintiff has filed the above Appeal on the ground that he is entitled to receive the entire amount as he is one who deposited the amount benami in the name of her wife.
6. Learned counsel appearing for the appellant/plaintiff submitted that the said amount of Rs. 5 lakhs was deposited only as requested by the 1st defendant-bank as a precondition to settle the dispute with respect to the payment of amount due by the plaintiff's father. As they requested third party security, the plaintiff deposited the said amount in the name of his wife. He also submitted that the wife of the appellant was not having any other source of income to deposit such an amount and the appellant/plaintiff deposited the said amount only from the proceeds of the sale effected on 28.3.1994 under Ex.A6 series. According to him, the learned Judge has not properly appreciated the evidence available on record before coming to the conclusion that the deceased Jansi Rani had source to deposit the huge amount of Rs. 5 lakhs. Learned counsel also relied on certain decisions in support of his submission that the appellant/plaintiff has established that the said amount was paid by him and he had established the source to deposit the said amount. He also relied on the evidence of the 4th defendant, the father of the said Jansi Rani, in support of his submission.
7. On the other hand, learned counsel appearing for the respondents/defendants 2 and 3 submitted that the appellant/plaintiff has not established the motive for creating benami transaction in the name of his wife. According to him, even if the 1st respondent/defendant-bank wanted security, the said amount of Rs. 5 lakhs, if it is of the plaintiff, he should have deposited the same in his name. Learned counsel referring to the chief-examination of P.W.1/plaintiff, submitted that the stand now taken that the said amount of Rs. 5 lakhs was paid from out of the sale consideration is only an afterthought and no such plea was raised at the first instance either in the plaint or in the chief-examination and the plea that the said amount of Rs. 5 lakhs was deposited from out of the said sale consideration was taken only in the chief-examination, when the plaintiff was recalled on 25.1.1999 after cross-examination was over, for the first time. Learned counsel also pointed out that even the copy of Ex.A6 series, namely, the sale deeds were not marked along with the plaint and they were marked, only after cross-examination was over, as stated above. Learned counsel further submitted that appreciating the oral and documentary evidence, the learned Judge has come to the conclusion that the deceased Jansi Rani was having source to deposit the said amount, and, in this Appeal, even if any other conclusion is possible, this Court may not take such a view and so the said findings of the learned Judge need not be interfered with. Learned counsel referred to the evidence of P.W.1, wherein P.W.1 stated that Ex.A6 series, the sale deeds, have been executed by the members of his family only for discharging the debts of the plaintiff's father. Learned counsel further referred to the evidence of D.W.1, the father of the deceased Jansi Rani, who has stated that his daughter, Jansi Rani told him that the said amount of Rs. 5 lakhs was deposited by herself and by the plaintiff.
8. From the above said pleadings and the judgment, the following points arise in this Appeal for determination:
(1) Whether the appellant/plaintiff is entitled to claim the entire amount of Rs. 5 lakhs stating that he deposited the said amount benami in the name of his wife Jansi Rani ?
(2) Can the appellant/plaintiff sustain such claim even if such a deposit was made by the plaintiff, in view of Section 3(2) of the Benami Transactions (Prohibition) Act, 1988 ?
9. Though a dispute was raised with respect to the marriage that took place between the plaintiff and the said Jansi Rani, even the learned Judge, on the basis of the evidence of D.W.2 found that the plaintiff married Jansi Rani on 21.2.1994 at Chennai, after the death of her first husband, Ramesh. So we have to decide the issue on the basis of the finding that Jansi Rani is the legally wedded wife of the appellant/plaintiff.
10. In the present case, we have to decide first from whose source the said amount of Rs. 5 lakhs was deposited and even assuming that if the said amount was deposited by the plaintiff, whether the plaintiff can claim any right in the said amount in view of the provisions of the Benami Transactions (Prohibition) Act, 1988, hereinafter called 'the Act'.
11. As stated earlier, the learned Judge found that the said Jansi Rani had resources to deposit the said amount of Rs. 5 lakhs and the plaintiff has not established that he deposited his money in the name of Jansi Rani.
12. Before going into the evidence to deal with the issues raised, we are inclined to deal with the scope of Section 3(2) of the Act, which reads as follows:
'3. Prohibition of benami transactions: (1) ....
(2) Nothing in Sub-section (1) shall apply to -
(a) the purchase of 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 the wife or the unmarried daughter;
(b) the securities held by a -
(i) depository or as a registered owner under Sub-section (1) of Section 10 of the Depositories Act, 1996;
(ii) Participant as an agent of a depository.
Explanation:- The expressions 'depository' and 'participant' shall have the meaning respectively assigned to them in Clauses (e) and (g) of Sub-section (1) of Section 2 of the Depositories Act, 1996'
Though the Act prohibits benami transactions, in view of the above said provision, namely, Section 3(2) of the Act, there is no prohibition to purchase of property by any person in the name of his wife or unmarried daughter, but it should be presumed that the said property had been purchased for the benefit of the wife or the unmarried daughter unless the contrary is proved.
13. In the decision in Nand Kishore Mehra v. Sushila Mehra, : [1995]215ITR218(SC) , the Apex Court dealt with the scope of Section 3(2), 4(1) and (2) of the Act and held as follows:
'6. Sub-section (1) of Section 3, as seen, prohibits a person from entering into any benami transaction. Sub-section (3) of Section 3, as seen, makes a person who enters into a benami transaction liable for punishment. Section 5 makes properties held benami liable for acquisition without payment of any amount. But, when Sub-section (2) of Section 3 permits a person to enter into a benami transaction of purchase of property in the name of his wife or unmarried daughter by declaring that the prohibition contained against a person in entering into a benami transaction in Sub-section (1) of Section 3, does not apply to him, question of punishing the person concerned in the transaction under Sub-section (3) thereof or the question of acquiring the property concerned in the transaction under Section 5, can never arise, as otherwise the exemption granted under Section 3(2) would become redundant. What we have said of the person and the property concerned in Sub-section (2) of Section 3 in relation to non-applicability of Section 3(3) and Section 5 shall equally hold good for non-applicability of the provisions of Sub-sections (1) and (2) of Section 4 in the matter of filing of the suit or taking up the defence for the selfsame reason. Further, we find it difficult to hold that a person permitted to purchase a property in the name of his wife or unmarried daughter under Sub-section (2) of Section 3 notwithstanding the prohibition to enter into a benami transaction contained in Sub-section (1) of Section 3 cannot enforce his rights arising therefrom, for to hold so would amount to holding that the statute which allows creation of rights by a benami transaction also prohibits the enforcement of such rights, a contradiction which cannever be attributed to a statute. If that be so, there can be no valid reasonto deny to a person, enforcement of his rights validly acquired even inthe past by purchase of property in the name of his wife or unmarrieddaughter, by making applicable the prohibition contained in respect offiling of suits or taking up of defences imposed in respect of benamitransactions in general by Sub-sections (1) and (2) of Section 4 of theAct. But, it has to be made clear that when a suit is filed or defence istaken in respect of such benami transaction involving purchase ofproperty by any person in the name of his wife or unmarried daughter,he cannot succeed in such suit or defence unless he proves that theproperty although purchased; in the name of his wife or unmarrieddaughter, the same had not been purchased for the benefit of either thewife or the unmarried daughter, as the case may be, because of thestatutory presumption contained in Sub-section (2) of Section 3 thatunless a contrary is proved that the purchase of property by the personin the name of his wife or his unmarried daughter, as the case may be,was for her benefit.'
14. But, in this case, there is no pleading or evidence to establish whether the said amount of Rs. 5 lakhs was deposited not for the benefit of Jansi Rani, the wife of the appellant/plaintiff. Even assuming that the said amount of Rs. 5 lakhs was deposited by the appellant/plaintiff, unless it is pleaded and established that the said amount was not deposited for the benefit of Jansi Rani, the wife of the appellant/plaintiff, but only with the intention to retain the right in the said amount, the presumption is that the said amount is deposited for the benefit of Jansi Rani, the wife of the appellant/plaintiff and the wife would get right in the said amount. We are coming to such a conclusion on the basis of Section 3(2) of the Act and also the decision of the Apex Court reported in Nand Kishore Mehra v. Sushila Mehra, : [1995]215ITR218(SC) . So, even on that ground, the plaintiff cannot sustain the suit.
15. Now, we proceed to appreciate whether the appellant/plaintiff had established that he deposited the said amount of Rs. 5 lakhs in the name of his wife Jansi Rani, that too, without any intention to give right to her in the said deposit. In the plaint, except saying that he deposited the amount as requested by the 1st defendant-bank in the name of Jansi Rani, nowhere the plaintiff mentioned the source under which he got the said money. Even in the evidence of the plaintiff as P.W.1, he did not state anything about the source except saying that since he alone had deposited the sum of Rs. 5 lakhs in the 1st defendant-bank, he is entitled to the amount. In the cross-examination, he admitted that he was not assessed to income tax in 1994 though he is a transport contractor. The said cross-examination was over on 12.1.1999. Thereafter, plaintiff/P.W.1 was recalled on 25.1.1999 and only in the said chief-examination when he was recalled for further chief-examination, he has stated for the first time that under Ex.A6 series, the four sale deeds were executed by him and others prior to the said deposit. Even during the said chief-examination, it is not stated that the said deposit was made from out of the sale consideration received by executing the sale deeds under Ex.A6 series. In the cross-examination, it was elicited that except the document dated 28.3.1994, which is for a total consideration of Rs. 3 lakhs, the other document was executed after the death of Jansi Rani. In the cross-examination that took place on 25.1.1999, P.W.1 has also stated that the documents under Ex.A6 series were executed by the members of his family for discharging the debts of his father. From the above, it is clear that either in the pleading or in the evidence, it is not stated specifically by the plaintiff that the said amount of Rs. 5 lakhs was deposited from out of the sale consideration received by executing the sale deeds dated 28.3.1994. In view of the above, the stand taken by the plaintiff before the learned Judge during the course of arguments, and the submission of the learned counsel appeared before us that the appellant/plaintiff deposited the sale consideration of Rs. 3 lakhs along with the other monies with the 1st defendant-bank under Ex.B3 cannot be countenanced, as the said submission is not supported by any pleading or evidence. Except the case of the appellant/plaintiff, as argued by the learned counsel, that the plaintiff was able to deposit the said sum of Rs. 5 lakhs only from out of the sale consideration derived from the sale deeds dated 28.3.1994, marked as one of the documents under Ex.A6, no other source is traced out.
16. Even in the decision in Jaydayal Poddar v. , it is held that the source from which the money is deposited has to be established, to claim right on the ground of benami and held as follows:-
'6. It is well settled 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 a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indica, 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........'
17. Even D.W.1, the father of the deceased Jansi Rani in his cross-examination stated that his daughter told him that the amount of Rs. 5 lakhs was deposited by herself and the plaintiff. Further, D.W.3, the officer of the 1st defendant-bank deposed in his chief-examination that he does not know who paid the money and made deposit. But, in the cross-examination, he has stated as follows:
'I cannot deny that Jhansi Rani alone deposited money under Ex.B3. I do not know whether Ex.B3 receipt was given by Jhansi Rani as a security amount due from Welpac Industries. I cannot say whether it was Jhansi Rani who paid the money and made Ex.B3 deposit.'
Except the evidence of P.W.1, there is no other independent evidence to establish that the said amount of Rs. 5 lakhs was deposited by the appellant/plaintiff alone in the name of Jansi Rani, the wife of the appellant. Even the copies of the sale deeds dated 28.3.1994 were not produced along with the plaint though the appellant/plaintiff has put forth the plea later that he deposited the said amount by utilising the sale consideration received under the said documents, Ex.A6 series. So, we do not find any exception in the judgment of the learned Judge in this regard to interfere with the same.
18. The learned Judge, appreciating the evidence of D.W.1 in the cross-examination and also the evidence of D.W.2, found that the said Jansi Rani had sources to deposit the amount under Ex.B3. It is well settled that even if this Court is able to take another view than that of the learned single Judge, this Court is not expected to take that view unless the findings of the learned Judge are not supported by any evidence. In this case, it cannot be said that the findings given by the learned single Judge are not based on any evidence. Hence the submission made by the learned counsel for the appellant/plaintiff that the learned Judge is not correct in coming to the conclusion that the deceased Jansi Rani had no resources to deposit the said amount of Rs. 5 lakhs cannot be accepted.
19. Though the learned counsel appearing for the appellant/plaintiff relied on the decisions in Controller of Estate Duty v. Aloke Mitra, : ; Nand Kishore Mehra v. Sushila Mehra, : [1995]215ITR218(SC) and Sarifan Bibi v. Dilwar Hossain, AIR 1975 Cal.211, the said decisions do not apply to the facts of the present case, as they were rendered before the Act No. 45 of 1988 came into force.
20. For the above reasons, the appellant/plaintiff cannot sustain this Appeal, as the findings given by the learned Judge do not warrant any interference. Accordingly, this Appeal is dismissed. No costs. C.M.P.No. 15023 of 1999 is also dismissed.