IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.2.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.449 of 2008 and M.P.Nos.1 and 2 of 2009 S.Sarangapani ... Appellant/Plaintiff vs. M.Arivukodi ... Respondent/Defendant This second appeal is filed against the judgement and decree dated 23.11.2007 passed by the Principal Subordinate Judge, Cuddalore, in A.S.No.99 of 2006 confirming the judgment and decree dated 14.11.2006 passed by the Principal District Munsif, Cuddalore, in O.S.No.587 of 2004. For Appellant : Mr.A.Venkatesan assisted by : Mr. K.G. Krishnaraj and : Mr. S. Shanthakumari For Respondent : Mr.S.K.Rakhunathan JUDGMENT This second appeal is filed by the plaintiff, inveighing the judgement and decree dated 23.11.2007 passed by the Principal Subordinate Judge, Cuddalore, in A.S.No.99 of 2006 confirming the judgment and decree dated 14.11.2006 passed by the Principal District Munsif, Cuddalore, in O.S.No.587 of 2004, which was filed for declaration and delivery of vacant possession of the suit property. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: (a) The plaintiff, who is the appellant herein, filed the suit seeking the following relief: https://hcservices.ecourts.gov.in/hcservices/ "to pass a judgement and decree a)for declaration of the plaintiff's title to the property agricultural land of an extent of 78 cents bearing T.S.No.2005/4 and 2008 in Cuddalore Registration District, Cuddalore Taluk and Sub Registration Office Block No.33, 5th Division, Ward No.7 morefully described in the schedule hereunder; b) directing by a decree of permanent injunction restraining the defendant, her men, agents, servants or any other person or persons claiming through her from alienating or otherwise encumbering the suit property; e) for future mesne profits from defendant at the rate of Rs.500/- p.a.from date of plaint till date of delivery of vacant possession of suit property; f) for costs of the suit." (extracted as such) (b) The defendant resisted the suit by filing written statement. (c) Whereupon the trial Court framed the issues. The plaintiff on his side examined himself as P.W.1 along with P.W.2 and marked Ex.A1 to A14. On the defendant's side, the defendant's husband was examined as D.W.1 along with D.W.2 and D.W.3 and marked Exs.B1 to B5. (d) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the appellate Court, confirming the judgement and decree of the trial Court. 4. Challenging and impugning the judgements and decrees of the Courts below, this second appeal has been filed on various grounds, inter alia, thus: (i) The Courts below failed to take note of the fact that the fund for purchasing the suit property flowed from the plaintiff, being the elder son of Singara Gounder, in whose name the property was purchased out of respect for him, however, the Courts below felt as though Singara Gounder himself purchased the suit property even though he had no source of income to purchase it. (ii) Throwing to winds the fiduciary relationship between Singara Gounder and his son-the plaintiff herein, the former sold the suit property in favour of the defendant and thereby, deprived the plaintiff of his legitimate right over it. (iii) The Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'the Act' for short) is not applicable in the facts and circumstances of this case for the reason that if fiduciary relationship is existing, as in this case, the question of invoking the prohibition under the said Act would not arise; the brother of the plaintiff was made to attest the Sale Deed, but he was not examined to prove the real nature of the transaction, by the https://hcservices.ecourts.gov.in/hcservices/ defendant. 5. Accordingly, in the memorandum of grounds of second appeal, the following substantial questions of law are found suggested: "a) Whether the judgements of courts below that the suit property is the absolute property of Singara Gounder and not the property of the plaintiff held benami in the name of his father is legally correct and is not vitiated by misreading of material evidence, non reference to crucial evidence and admissions on the side of the respondent? b) Whether the evidence tendered in the case did not lead to the inference that Ex.A8 = Ex.B1 is legally invalid and is hit by the Rule of non-est factum. c) Whether the lower Court is right in law in coming to a conclusion that the suit is bad for non-joinder of V.K.Mani, the respondent's husband in the absence of any plea of non-joinder of parties in the written statement and in the face of the fact that admittedly the impugned Sale Deed stands only in the name of the respondent. d) Whether the oral and documentary evidence tendered in the case did not lead to an inference in law that Singara Gounder was in the position of Trustee and in fiduciary relationship viz-a-viz his son, the appellant and that the defendant who is claiming title under the apparent owner is also in the same legal position? (extracted as such) 6. Based on the available materials, my learned predecessor framed the following substantial questions of law: "1. Whether the judgements of Courts below that the suit property is the absolute property of Singara Gounder and not the property of the plaintiff held benami in the name of his father is legally correct and is not vitiated by misreading of material evidence, non reference to crucial evidence and admissions on the side of the respondent? 2. Whether the evidence tendered in the case did not lead to the inference that Ex.A8 = Ex.B1 is legally invalid and is hit by the Rule of non-est factum? 3. Whether the lower Court is right in law in coming to a conclusion that the suit is bad for non-joinder of V.K.Mani, the respondent's husband in the absence of any plea of non-joinder of parties in the written statement and in the face of the fact that admittedly the impugned sale deed stands only in the name of the respondent. 4. Whether the oral and documentary evidence tendered in the case did not lead to an inference in law that Singara Gounder was in the position of Trustee and in fiduciary relationship viz-a-viz his son, the appellant and that the defendant who is claiming title under the apparent https://hcservices.ecourts.gov.in/hcservices/ owner is also in the same legal position? 7. Heard both. 8. Substantial Questions of law (1) to (4): All these substantial questions of law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another. 9. The learned counsel for the appellant/plaintiff would advance his arguments, the gist and kernal of them would would run thus: (i) The first appellate Court, without adverting to the factual evidence available on record, simply confirmed the judgement and decree of the trial Court, warranting interference in second appeal. (ii) Admittedly and indubitably the plaintiff was having textile business of his own at the relevant time of the purchase of the suit property in the name of Singara Gounder, however, this fact was not at all considered by the Courts below. (iii) Singara Gounder was very old and incapable of knowing the actual transaction under Ex.A8 and hence it is hit by non-est factum. (iv) The trust reposed by the plaintiff in his father that the latter would keep the property in his name on behalf of the plaintiff was flouted and by way of defrauding the plaintiff, his own father Singara Gounder sold the property, and for which, the plaintiff's brother also was a party, as they all colluded together and defrauded the plaintiff. (v) The defendant is admittedly a close relative of Singara Gounder and she, knowing that Singara Gounder was not the actual owner and that only the plaintiff is the owner, allegedly purchased the suit property. (vi) Singara Gounder had no source of income and he was only a farmer and there was no extensive joint family property, which was capable of yielding income, so as to enable Singara Gounder to purchase the suit property, and no evidence has been adduced on the side of the defendant that Singara Gounder had enough source to purchase the property. Accordingly, the learned counsel for the appellant/plaintiff citing various decisions would pray for setting aside the judgements and decrees of the Courts below and for decreeing the original suit in favour of the plaintiff. 10. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the respondent/defendant would advance his arguments, which could https://hcservices.ecourts.gov.in/hcservices/ briefly and tersely be set out thus: (a) Absolutely there is no shard or shred, molecular or jot, miniscule or iota of evidence to prove that the sale consideration for purchasing the suit property by Singara Gounder was provided by the plaintiff. (b) Even as per the plaint, there was a joint family and it had some property. While averring so in the plaint, the plaintiff also would allege as though he acquired the suit property in the name of his father, who was the manager of the said joint family. (c) The preponderance of probabilities would not enure to the benefit of the plaintiff to put forth such a plea, as ex facie and prima facie such a plea is untenable. (d) The documents produced on the side of the plaintiff was 14 in number as under: Ex.A1 – Inauguration card dated 4.3.1970 Ex.A2 – Sale Deed dated 20.6.1974 Ex.A3 Certificate of Work dated 3.9.2002 Ex.A4 Death Certificate of Singara Gounder dated 10.12.1996 Ex.A5 Justice Shetty's report dated 13.2.1993 Ex.A6 Justice Monhan's report dated 1.12.1997 Ex.A7 Encumbrance Certificate dated 12.6.2002 Ex.A8 Sale Deed dated 24.7.1991 Ex.A9 – Rectification Deed dated 16.8.2001 Ex.A10 – Notice dated 8.8.2002 Ex.A11 Reply Notice dated 20.8.2002 Exs.A12 & A13 – Photo with negative dated 14.6.2006 Ex.A14 Marriage Invitation dated 14.6.2006 Out of the above documents, none of the documents would show that the suit property was purchased in the name of Singara Gounder. The voluminous decisions cited on the side of the plaintiff are totally irrelevant for the reason that if at all there is evidence to show that fund flowed from the plaintiff to Singara Gounder for the purpose of purchasing the suit property, then only those decisions could be pressed into service. Inasmuch as there is no evidence in that regard, the question of placing reliance on those judgements would not arise. (e) The suit was also bad for want of a prayer for declaration of Sale Deed as void, as in respect of voidable document there should be a prayer for declaring the document as void. Accordingly, the learned counsel for the respondent/defendant would pray for dismissal of the second appeal. 11. At the outset itself I would like to fumigate my mind with https://hcservices.ecourts.gov.in/hcservices/ the following decisions of the Honourable Apex Court: (i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronoucements. ............. 22. In Hero Vinoth v. Seshammal, this Court has observed that : (SCC p.556, para 24) "(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or action on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." (ii) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL; (iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: A plain reading of the above precedents would reveal and demonstrate that under Section 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless substantial question of law is involved. 12. However, the learned counsel for the plaintiff would cite the decision of this Court reported in (2008) 1 MLJ 810 – GOVINDARAJA NAIDU AND OTHERS V. MEENATCHI SUNDARAM AND 2 OTHERS. 13. There is no quarrel over with such a proposition as found https://hcservices.ecourts.gov.in/hcservices/ enunciated in the said judgement for the reason that if there is any perversity or illegality in the concurrent findings of the Courts below, unhesitatingly, the High Court has to interfere. As such, in this case, it has to be found out as to whether there is any perversity or illegality in the concurrent findings given by the Courts below. 14. The onus of proof is obviously and axiomatically on the plaintiff to prove and establish that the suit property was purchased by him in the name of his father-Singara Gounder. It has to be seen as to whether the Courts below adverted to the said fact and rendered its findings properly. 15. Ex.A1 is the invitation dated 4.3.1970 showing that the plaintiff opened a textile shop under the name and style Sri Kannapiran Silk House in Chennai. Ex.A2 is the concerned Sale Deed dated 20.6.1974 emerged in the name of Singara Gounder. 16. The learned counsel for the plaintiff would try to advance his argument that since the suit property was purchased in the year 1974, a reasonable presumption arises that the plaintiff purchased the suit property in the name of his father because even in the year 1970, as revealed by Ex.A1, the plaintiff had source of income, for which, the learned counsel for the respondents/defendants would submit that it is not the case of the defendant that the plaintiff had no financial wherewithal at all during the year 1974; however, he would hasten to put forth his objection that a mere marking of Ex.A1- the invitation, would not in any way lead to the presumption that because the plaintiff was running a textile shop in the year 1970 or even subsequently, it has to be presumed that the property was purchased by Singara Gounder in the year 1974. The fallacy in logic “Post hoc, ergo propter hoc: (after this, therefore because of this (a fallacious reasoning)) would highlight that the argument on the plaintiff's side is unacceptable. 17. At this juncture, I would like to quote here under Section 4 of the Indian Evidence Act: "4."May Presume" – Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it: "Shall presume" – Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved: "Conclusive proof" – When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it." https://hcservices.ecourts.gov.in/hcservices/ A mere perusal of it would connote and convey that unless law enables a presumption to be made from out of a particular set of facts, the question of presumption would not arise. 18. Here from Ex.A1, by no stretch of imagination there could be any presumption that the property was purchased by the plaintiff in the name of Singara Gounder. 19. Ex.A3 is the certificate dated 3.9.2002 issued by Corborundum Universal Ltd to the effect that the plaintiff was working as employe in the said Corporation during the year 1955-1970, so to say, anterior to the emergence of that textile shop. From Ex.A1 and Ex.A3, no presumption arises that the suit property was purchased by the plaintiff in the name of Singara Gounder. 20. At one point of time when P.W.1 was cross-examined as to how he was enjoying the suit property, in the wake of the property having stood in the name of Singara Gounder, as per Ex.A2 and that the patta also having stood in his name, P.W.1 went to the extent of deposing that he paid the money for paying the land tax through Singara Gounder. He also in another breathe would state that every now and then, Singara Gounder used to pay the income arising out of the suit property to him. There are so many unanswered questions bristling up in this case. 21. Unarguably and incontrovertibly, the plaintiff was residing in Chennai, whereas, the suit property is situated far away in Cuddalore Taluk. It is not the case of the plaintiff that the plaintiff cultivated personally the suit property by engaging men. He admitted that his father only was cultivating the suit property. However, he would depose that his father would give the income to him and it is not even his case that after paying the tax, the remaining income was paid to the plaintiff by his father. The plaintiff would even go to the extent of deposing that he gave money to his father for paying land tax, in the name of his father. This is nothing but an embellished way of putting forth his case. If at all the father was in the habit of paying income arising out the suit property to the plaintiff, then the father, after paying the tax from out of the income, would pay the remaining to the plaintiff. But the plaintiff would put forth a totally unbelievable case as though he was paying hard cash to his father for paying tax to the suit property. 22. Even as per the plaint, there existed a joint family among them, which owned some properties; however, the details of the properties are not found spelt out. P.W.1 would contend that the property was insignificant, not capable of generating income and that was why he migrated from Cuddalore to Chennai for the purpose of eking out his livelihood etc. 23. It is the normal contention of aggrieved co-owners in a https://hcservices.ecourts.gov.in/hcservices/ coparcenary that for the purpose of keeping a particular property out of the reach of other coparcenary, one coparener had purchased property in the name of his spouse and other relative and not in his own name. But this is a case where admittedly, the plaintiff has his brother by name Natarajan, who attested Ex.A8 i.e. the impugned Sale deed executed by Singara Gounder in favour of the defendant. When such is the factual position, I am at a loss to understand as to what could have prompted the plaintiff to purchase the suit property in the name of his father, who, according to him, was the manager of the joint family properties, even though the plaintiff, as per him, intended the suit property to be his exclusive self-acquired property. 24. The learned counsel for the plaintiff would try to explain and expound, of course, unsatisfactorily that out of love and affection towards his father, the plaintiff purchased the suit property in the name of his father. Any plea should be akin to reasoning and robust common sense, but my discussion supra would indicate and expose that the plea of plaintiff is nothing but a stooge to assert case unjustifiably. 25. There is nothing also to indicate as to what prompted the plaintiff not to purchase the property in his own name. If at all he had such love and affection to his father, he could have after purchasing the property in his own name and there after could have left it in the management of his father. The plea 'love and affection' as put forth in this case seems to be quite artificial and the Courts below in the wake of the available oral and documentary evidence, correctly disbelieved it, warranting no interference in second appeal. The ratiocination adhered to by the Courts below are akin to preponderance of probabilities and based on evidence. 26. The learned counsel for the plaintiff would submit that the provisions of The Benami Transactions (Prohibition) Act, 1988 would not be applicable to the facts and circumstances of this case, as there was fiduciary relationship between the plaintiff and his father and in such a case, the prohibition contained in the Act would not be applicable. 27. I would like to reproduce hereunder some of the provisions of the The Benami Transactions (Prohibition) Act, 1988. "3. Prohibition of Benami Transactions – (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to 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. (3) Whoever enters into any benami transaction shall be https://hcservices.ecourts.gov.in/hcservices/ punishable with imprisonment for a term which may extend to three years or with fine or with both. (4)Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable. 4.Prohibition of the right to recover property held benami:- (1) 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. (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 the real owner of such property. (3) Nothing in this section shall apply- (a) Where the person in whose name the property is held is a coparcener in a Hinduh undivided family and the property is held for the benefit of the coparceners in the family; or (b) 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." 28. A mere reading of the above provisions would clearly demonstrate and display that if there is fiduciary relationship between the parties, then the question of pressing into service the prohibition contemplated under the said Act would not be applicable. But the learned counsel for the defendant would appropriately and appositely convincingly and correctly point out that if at all there is anything to show that the suit property was purchased by the plaintiff in the name of his father-Singara Gounder, by utilising the funds of plaintiff, then the question of considering as to whether there was fiduciary relationship or not between the two, would arise. 29. In support of the contention of the plaintiff, the following decisions are cited: (i) 2010 1 C.T.C. 241 Secretary General, Supreme Court of India vs. Subhash Chandra Agarwal, an excerpt from it would run thus: "101. Section 88 of