HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S. No.192 of 1994 Date: August 13, 2010 Between: Pukkalla Ramulamma. … Appellant And 1. Mansas (Maharajah Alak Narayana Society of Arts & Sciences), represented By its Secretary P.L.N.Raju and another. … Respondents * * * HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR A.S. No.192 of 1994 JUDGMENT: This appeal is filed by the third party claimant whose claim petition E.A. No.317 of 1989 in E.P. No.63 of 1988 was allowed in part to the extent of the half share of the claimant in item No.1 of the petition schedule property and attachment to that extent was raised under the impugned order of the court below. 2. This claim petition came to be filed in E.P. No.63 of 1988 by the first respondent herein against the second respondent. The said suit was for recovery of money. The first respondent filed the execution petition and attached items 1 to 3 of the petition schedule properties belonging to the second respondent-judgment debtor. The claim petitioner, who is appellant herein, is the wife of the second respondent-judgment debtor and she filed the present claim petition E.A. No.317 of 1989 seeking to raise the attachment dated 18.9.1988 made in E.P. No.63 of 1988 referred to above. The said claim petition filed under Order XXI Rule 58 of the Code of Civil Procedure was opposed by decreeholder contending that the claim petition is not maintainable. The decree-holder however was fair in filing the memo before executing court on 24.12.1992 stating that the second respondent has no right in respect of items 2 and 3. However, for item No.1 of the petition schedule property, appellant-claim petitioner as well as second respondent-judgment debtor having equal rights and, therefore, the attachment to the extent of half share of the claim petitioner-appellant may be raised. 3. Since the claim petitioner-appellant is seeking to raise attachment to the extent of other half as well, she contested the claim petition by examining herself as P.W.1 and examining her vendor as P.W.2. She also marked Exs.A-1 to A-5 out of which Ex.A-1 is the sale deed dated 04.01.1970 executed by P.W.2 in favour of claim petitioner-appellant and second respondent- judgment debtor. 4. Before executing court, the claim petitioner-appellant deposed that she acquired the said item No.1 under Ex.A-1 out of the monies given to her by her mother and by selling her gold ornaments and the name of second respondent-judgment debtor was only nominally included. She therefore contended that item No.1 is her ‘stridhana’ property and cannot be attached with reference to the debt or decree obtained by first respondent against second respondent. The court below disbelieved her evidence on the ground that such oral evidence cannot contradict registered sale deed Ex.A-1 in view of Section 91 of the Evidence Act and in view of the memo filed by the first respondent-decree holder allowed the claim petition to the extent of half share of the appellant-claim petitioner. However, not satisfied with the same, the present appeal is filed. 5. Heard the learned counsel for appellant who has contended that the entire item No.1 ought to have been held as belonging to the appellant in view of the fact that she had led evidence that entire consideration was paid by her. The learned counsel also placed reliance upon sub-clause (3) of Section 4 of the Benami Transactions (Prohibition) Act, 1988 and according to the learned counsel under clause (3) thereof the name of the second respondent-judgment debtor mentioned in the sale deed Ex.A-1 is only in the fiduciary capacity and hence prohibition under the Act will not apply. 6. I have considered the aforesaid submission in the light of the recitals in Ex.A-1. The material recitals in Ex.A-1 is as follows: “idivarake nagadu meeru ichinanduna maaku muttinadi“ Secondly, the evidence of P.W.2, the vendor of the appellant, is that the appellant was carrying on business in provisions and out of the monies out of that business she paid the consideration. The aforesaid evidence is directly contrary to the evidence of P.W.1 that she purchased itemNo.1 out of her ‘stridhana’ properties. Further P.W.1 was not able to substantiate her statement in the chief-examination when she was subjected to pointed questions in the cross-examination. The burden to establish that entire consideration was paid by the appellant out of her own funds, therefore, remained un-established and consequently the situation as contemplated under clause (b) of sub-clause (3) of Section 4 of the Benami Transactioins (Prohibition) Act, 1988 cannot be held to have been established. 7. The court below has rightly considered the evidence on record and the conclusions reached are clearly in conformity with Section 91 of the Evidence Act and therefore I am unable to find any substance in the claim of the appellant. 8. The appeal therefore is without merit and is liable to be dismissed and accordingly dismissed. However, there shall be no order as to costs. ____________________________ VILAS V. AFZUL PURKAR, J Date: August 13, 2010. BSB