Suit for partition and profits.
2. The averments contained in the plaint are briefly stated as follows: 2.1. The plaintiff is the widow of one Samuel and the said Samuel married her, on 07.06.1996, according to Hindu Sastric rites, at Arulmighu Subramania Swmy Temple, Pookkara Street, Thanjavur and since then, they have been living together as husband and wife till the death of Samuel on 25.03.1999. Samuel had earlier married one Vedavalli and through whom the second defendant was born and Vedavalli died on 16.08.1995 leaving her husband Samuel and the minor second defendant as legal heirs. After the death of Vedavalli, Samuel married the plaintiff and it was the plaintiff, who nursed and brought up the second defendant and thereby the second defendant developed a special love and affection for the plaintiff. Samuel was employed as a Driver in Gulf countries for more than ten years before he married the plaintiff and he returned to India in or about 1995. The first defendant is the father of the deceased Vedavalli and also the husband of Samuel's sister. The family of the first defendant was wholly dependant upon the deceased Samuel. Neither the first defendant nor the deceased Vedavalli was in a position to acquire any property and the properties described in the plaint Schedule were acquired and developed out of the funds of Samuel. Vedavalli had no independent right over the plaint Schedule properties. Though the said Samuel acquired the plaint Schedule properties with his own funds in the name of Vedavalli, he never intended to benefit her and it was only a benami transaction for his own benefit. Thus, the plaintiff and the second defendant have got equal share in the plaint Schedule properties and the first defendant has no right whatsoever over the same. He is also not the legal guardian of the second defendant and he is only a de facto guardian having the custody of the minor second defendant. After the death of Samuel, the plaintiff had been accepted as his legally wedded wife, however, later she had been isolated from the family on the scheming fraud played by the first defendant and his wife and thereby the first defendant deprived the plaintiff from claiming any right or share in the plaint Schedule properties. The plaintiff, in such circumstances, issued a registered notice, dated 13.11.1999, to the first defendant calling upon him to divide the plaint Schedule properties and hand over due share to her. To the same, a false reply, dated 22.11.1999, has been sent by the first defendant and falsely averred that the deceased Samuel was a Christian and she is not the legally wedded wife of Samuel. The above case has been projected in order to prevent the plaintiff from claiming any share in the plaint Schedule properties. To the said reply notice, the plaintiff has caused a rejoinder, dated 04.12.1999. Hence the suit.
3. The averments contained in the written statement filed by the first defendant are briefly stated as follows:
3.1. The suit is not maintainable either in law or on facts. It is false to state that the plaintiff is the legally wedded wife of the deceased Samuel and that their marriage took place on 07.06.1996, at Arulmughu Subramania Swamy Temple, Pookkara Street, Thanjavur, as per Hindu Sastric rites and that it is a valid marriage. It is false to state that the plaintiff and Samuel had been living together as husband and wife till the death of Samuel. The plaintiff is an Hindu and the deceased Samuel is a Christian, hence, the marriage between the Samuel and the plaintiff is invalid and the plaintiff is not, thus, entitled to any benefit of the deceased Samuel. It is false to state that the deceased Samuel was employed as a Driver in Gulf countries for more than ten years. It is false to state that the defendants' family was dependant upon the income of the Sameul for their sustenance. It is false to state that the suit properties were acquired by the deceased Samuel for his own benefit in the name of the deceased first wife Vedavalli and that it is only a benami transaction made for his own benefit. Samuel has no right over the suit properties and had no funds to acquire the suit properties as such. The properties described in the plaint Schedule were purchased by the first defendant from his own funds in the name of his daughter Vedavalli and further the first defendant's wife was a Government employee and both being earning members, they had contributed for the purchase of the suit properties in the name of the deceased Vedavalli. It is false to state that the plaintiff had been accepted as the legally wedded wife of the deceased Samuel and later, she was prevented from claiming right over the suit properties. To the notice sent by the plaintiff, a reply has been given containing true facts. It is false to state that the plaintiff has special love and affection towards the second defendant. The B-Schedule property described in the plaint does not belong to the family and it has been falsely included in the suit for the purpose of territorial jurisdiction. The C-Schedule property is not in existence. There is no cause of action for the suit. Hence, the suit is liable to be dismissed.
4. On the basis of the pleadings set out by the respective parties, the following issues were framed by the Trial Court:
5. In support of the plaintiff's case, P.Ws.1 and 2 were examined and Exs.A1 to A20 were marked and in support of the defendants' case, D.Ws.1 and 2 were examined and Exs.B1 to B20 were marked.
6. On a perusal of the oral and documentary evidence adduced by the respective parties, the Trial Court was pleased to decree the suit as prayed for in respect of A and C Schedule properties and dismissed the suit in respect of B-Schedule property. Aggrieved over the same, the present first appeal has been preferred by the defendants.
7. The following points arise for consideration in this appeal: i. Whether the respondent / plaintiff is entitled to obtain partition and separate possession of half share in the suit properties as put forth in the plaint? and ii. To what relief, the appellants / defendants are entitled to?
POINT NO.I:
8. It is not in dispute that the deceased Vedavalli is the wife of the deceased Samuel. The second defendant is the daughter born to the deceased Samuel and the deceased Vedavalli and as regards the same also there is no dispute. The first defendant is the father of the deceased Vedavalli. He is also the husband of the deceased Samuel's sister. Claiming that the deceased Samuel married her as per Hindu Sastric rites after the death of Vedavalli and further claiming that the suit properties had been acquired by the deceased Samuel for his own benefit in the name of the deceased Vedavalli benami and further claiming that inasmuch as the defendants deprived her from claiming right and share in the suit properties, according to the plaintiff, she has been necessitated to lay the suit for partition. Per contra, it is the case of the defendants that the plaintiff is not the legally wedded wife of the deceased Samuel as the deceased Samuel was a Christian and thus, the alleged marriage between the deceased Samuel and the plaintiff would not be a valid marriage and further according to the defendants, the case set out by the plaintiff that the suit properties had been acquired by the deceased Samuel out of his own funds for his own benefit in the name of the deceased Vedavalli benami is false and on the other hand, according to them, the suit properties were acquired out of the funds contributed by the first defendant and his wife and the same had been purchased in the name of Vedavalli and thus, according to them, the plaintiff cannot claim any right or share over the suit properties and hence, the suit is liable to be dismissed.
9. As regards the defence put forth by the defendants that the plaintiff did not contract a valid marriage with the deceased Samuel and thus, she is not the legally wedded wife of the deceased Samuel, the learned counsel appearing for the appellants did not put forth any submission with reference to the same in this appeal. Further, considering the reasons given by the Trial Court based upon the materials produced with reference to the above said issue, it is found that the Trial Court, on a consideration of the materials produced on behalf of the defendants marked as Exs.B17 to B20 and also placing reliance upon the documents marked as Exs.A2 and B5, they being the death certificate of the deceased Samuel and also the death certificate of the deceased Vedavalli marked as Exs.A3 and B4, held that the deceased Samuel was only a Hindu and not a Christian as put forth by the defendants. Further proceeding, the Trial Court has also taken into consideration the application submitted by the second defendant at the time of admitting her in the School marked as Ex.A9 held that the deceased Samuel was only a Hindu and not a Christian as put forth by the defendants. In addition to that, the Trial Court has also taken into consideration that no serious challenge has been put to the plaintiff during her cross-examination by the defendants as regards her case of marriage with Samuel at the Temple as pleaded by her in the plaint and also deposed during the course of evidence and further placing reliance upon the photos marked as Exs.A12 and A13 and the marriage invitation marked as Ex.A10 on a whole held that the marriage between the plaintiff and the deceased Samuel was performed at the Hindu Temple as put forth by the plaintiff and that the said marriage between them is a valid one. Therefore, it is found that the defendants in this appeal has not put forth any serious contention or material to deviate from the above said findings of the Trial Court.
10. Further, as seen from the Judgment of the Trial Court, it is found that the plaintiff has also produced Exs.A14, A15 and A17 to establish that after the marriage with Samuel, they had been living together as husband and wife and the same has also been taken into consideration by the Trial Court to hold that the deceased Samuel and the plaintiff had been treated as husband and wife by the Society and on that basis also, the Trial Court held that their marriage is proved and the said marriage is a valid one. In such view of the matter, the Court below has rightly held that there was a valid marriage between the deceased Samuel and the plaintiff and thereafter, they had been living as husband and wife and accordingly, held that the plaintiff is the legally wedded wife of the deceased Samuel.
11. The plaintiff has laid the suit claiming that she is entitled to obtain half share in the suit properties on the footing that the suit properties had been acquired by the deceased Samuel out of his own funds earned by employing at abroad and that the suit properties had been though purchased by the deceased Samuel in the name of his wife, the deceased Vedavalli, according to her, the said sale transactions had been entered into by the deceased Samuel only for his own benefit and thus, according to her, after the demise of Samuel, she being one of the legal heirs of the deceased Samuel, is entitled to obtain half share in the suit properties. The above case of the plaintiff is stoutly resisted by the defendants claiming that the suit properties are not acquired by the deceased Samuel as benami in the name of the deceased Vedavalli as put forth by the plaintiff and that according to them, the deceased Samuel was not having funds to acquire the suit properties and according to them, the suit properties had been acquired in the name of the deceased Vedavalli out of the funds contributed by the first defendant and his wife and thus, it is stated that the plaintiff is not entitled to claim any share or right over the suit properties and demand partition. Further, according to them, the B-Schedule property does not belong to the family and hence, the suit as regards the same is liable to be dismissed.
12. As regards the case of the defendants that the B-Schedule property does not belong to the contesting parties could be seen from the document marked as Ex.B3, wherefrom it is found that the same had been acquired in the name of one Vembu Lakshmi. Therefore, it is to be held that the B-Schedule property is not the property of the contesting parties and therefore, it is taken out from the purview of the present lis.
13. As regards the remaining suit properties are concerned, when the plaintiff has put forth a claim of benami in respect of the acquisition of the suit properties by her husband, the deceased Samuel, as rightly contended by the learned counsel for the defendants, the onus rests upon the plaintiff to establish that the suit properties had been acquired by the deceased Samuel out of his own funds benami in the name of the deceased Vedavalli. With reference to the same, according to the plaintiff, the deceased Samuel was employed abroad for more than ten years and thus, he was instrumental for contributing funds towards the acquisition of the suit properties in the name of the deceased Vedavalli. The said case of the plaintiff that her husband was employed abroad during the relevant period is seriously controverted by the defendants. Despite the said position, the plaintiff has not placed any acceptable or reliable material to establish that the deceased Samuel was employed abroad during the relevant period. As seen from Exs.B1 and B2, Sale Deeds marked to evidence the purchase of the suit properties, it is found that they have been acquired during 1990 and 1992. However, there is no material placed on the part of the plaintiff to establish that her husband Samuel was employed abroad during the above said period. Therefore, when there is no material to show that the deceased Samuel was employed abroad and earning funds, the case of the plaintiff that the suit properties had been acquired by Samuel out of his own funds earned by employing at aborad in the name of his wife Vedavalli benami cannot be acceded to.
14. However, it is argued by the plaintiff's counsel that the letter, dated 02.02.1994, marked as Ex.A18, to Samuel's mother by Samuel would establish that he was employed abroad and thus, the Court should hold that it was only he who had contributed the funds for the acquisition of the suit properties. However, it has not been established by the plaintiff that Ex.A18 had been really written by the deceased Samuel. Be that as it may, the cover under which it had been sent and marked as Ex.A20 also does not help the plaintiff's case in any manner. It has been admitted by the P.W.1 during the course of cross-examination that Ex.A18 has not been written to her and it has been addressed only to Samuel's mother and the cover marked as Ex.A20 is not the cover pertaining to Ex.A18. Therefore, it is seen that when Ex.A18 has not been addressed to the plaintiff and Ex.A20 also not related to Ex.A18, merely from Ex.A18, it cannot be held that the deceased Samuel was employed abroad during the relevant period and he was earning funds abroad and sending the same to his wife Vedavalli for the acquisition of the suit properties. Further, a reading of Ex.A18 does not show anything or indicate anywhere that Samuel was employed aboard and earning adequate funds so as to enable him to purchase the suit properties in the name of his wife, the deceased Vedvalli. Further, there is no reference at all in Ex.A18 as to the acquisition of the suit properties by the deceased Samuel out of his own funds in the name of the deceased Vedavalli. Such being the position, it is found that Ex.A18 would not in any manner advance the case of the plaintiff to hold that it was only Samuel, who was the owner of the suit properties.
15. Further, the plaintiff's counsel contended that under Ex.A19, both Samuel and Vedavalli had mortgaged the properties and by the said transaction, the Court should infer that it was only Samuel, who was the owner of the suit properties. However, as rightly put forth by the defendants' counsel, a mere joint execution of the mortgage by the deceased Samuel with his wife Vedavalli alone would not lead to inference that Samuel was the owner of the suit properties sans any material to hold that it was Samuel, who had contributed the funds for the acquisition of the suit properties. Therefore, as rightly contended by the defendants' counsel the joint mortgage of the suit properties by the deceased Samuel and deceased Vedavalli singularly cannot be taken into consideration for holding that the suit properties had been purchased by Samuel benami in the name of the deceased Vedavalli.
16. Further, as rightly contended by the defendants' counsel, it is found that the Patta in respect of the suit properties had been transferred in the name of the second defendant marked as Ex.B6 and also it is only the second defendant or the defendants concerned, who are paying the necessary taxes for the suit properties, which are marked as Exs.B7 to B16. Therefore, in the absence of any material to show that Samuel had acquired the suit properties benami in the name of the deceased Vedavalli or had exercised full ownership over the suit properties or had necessary funds during the relevant period for the acquisition of the suit properties in the name of Vedavalli, it could be seen that the case set out by the plaintiff that the deceased Samuel had purchased the suit properties benami in the name of Vedavalli out of the funds earned by him abroad as such cannot be accepted in any manner.
17. On a perusal of the provisions contained in the Benami Transactions (Prohibition) Act, 1988, it is found that it shall be presumed, unless the contrary is proved, that the purchase of the property by any person in the name of wife or unmarried daughter, the property had been purchased for the benefit of the wife or unmarried daughter. Therefore, when above being the position of law, when there is no material to hold that the suit properties had been actually purchased by the deceased Samuel out of his funds and when the plaintiff has miserably failed to establish the source of the funds for the acquisition of the suit properties, particularly, that it had flown from the deceased Samuel, it could be seen that the plaintiff's case that suit properties had been purchased for the benefit of the deceased Samuel, however in the name of Vedavalli as such cannot be accepted in any manner.
18. From the materials placed by the parties it is found that the title deeds of the suit properties are only in the custody of the defendants. It is only the defendants, who are found to be in possession and enjoyment of the suit properties and it has not been established by the plaintiff that the deceased Samuel had enjoyed the suit properties as absolute owner thereof at any point of time as adverted to above. The sole mortgage transaction marked as Ex.A19 by itself would not lead to the conclusion that the suit properties were acquired by Samuel benami in the name of the deceased Vedavalli. Therefore, it is found that the plaintiff has miserably failed to establish that the suit properties had been acquired by the deceased Samuel in the name of Vedavalli for his own benefit.
19. As rightly put forth by the learned counsel for the defendants, the Trial Court has erred in shifting the burden on the defendants to establish that the suit properties had been purchased by the deceased Vedavalli out of her own funds. Further, the Trial Court has upheld the case of the plaintiff on the footing that the defendants have failed to establish the plea of benami put forth in the written statement. However, when the plaintiff has come forward with the claim of partition and when the said plea of the plaintiff is seriously disputed by the defendants, it is for the plaintiff to establish the same and the plaintiff having failed to discharge her burden, cannot be allowed to pick holes in the defendants' case and thereby attempt to succeed in her case sans any material or proof with reference to her case.
20. In support of his contentions, the learned counsel for the defendants has placed reliance upon the decisions reported in (1974) 1 SCC 3 [Jaydayal Poddar (deceased) through L.Rs., and another vs. M.S.T.Bibi Hazra and others], 1995 TLNJ 340 [M.P.P.Jayagandhi Nadar and Co., by Partner M.P.P.Jayagandhi Nadar vs. Arunachalam Pillai and another], 1995 (II) CTC 356 [Nand Kishore Mehra vs. Sushila Mehra], 1995 (I) CTC 568 [R.Rajagopal Reddy (Dead) By LRS and others vs. Padmini Chandrasekhran (Dead) By LRS], AIR 2004 Kerala 312 [V.Suseelan v. T.P.Leela and others], 2015 (3) CTC 316 [Shanthi @ Shanthi Sathya and others vs. M.Masanam], 2015 (2) CTC 540 [Angamuthammal vs. Govindaraj]. The principles of law enunciated in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
21. In the light of the above discussions, I hold that the plaintiff has failed to establish that the suit properties had been acquired by the deceased Samuel benami in the name of his deceased wife Vedavalli for his own benefits. I further hold that the suit properties belonged to the deceased Vedavalli and therefore, I hold that the plaintiff is not entitled to claim any right or share over the suit properties. Thus, I hold that the plaintiff is not entitled to obtain partition and separate possession of half share in the suit properties as claimed in the plaint. Accordingly, Point No.I is answered in favour of the defendants and against the plaintiff.
POINT NO.II:
22. In the light of the answer to Point No.I, the Judgment and decree, dated 21.01.2003, passed in O.S.No.2 of 2000, on the file of the Sub-Ordinate Judge, Thanjavur, as regards the A and C Schedule properties are set aside and the suit is dismissed in entirety with costs. Accordingly, the first appeal is allowed with costs. Consequently, connected civil miscellaneous petition is closed.
To:
The Subordinate Judge, Thanjavur.
.