IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2008 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN A.S.No.501 of 1994 1. Ramalingam alias Subbu Ramalingam 2. Sridharan ... Appellants vs. 1. Santha Ammal 2. Sridevi 3. Imayavarambhan ... Respondents Appeal filed under Section 96 of the Code of Civil Procedure praying to set aside the judgment and decree dated 08.11.1993 made in O.S.No.34 of 1990 on the file of the Court of the Subordinate Judge, Chidambaram. For Appellants : Mr.Srinath Sridevan for Mr.S.Ramamurthi For Respondents : Mr.S.Krishnasamy, for R1 J U D G M E N T The unsuccessful defendants 2 and 3 in O.S.No.34 of 1990 on the file of the Subordinate Judge, Chidambaram has preferred this appeal challenging the judgment and decree of the Lower Court dated 08.11.1993. 2. It is the case of the plaintiff before the Lower Court that the suit property, which is a house bearing Door Nos.29 and 29-A, Karaikattu Chokkalingam Pillai Street, Chidambaram Town, originally belon1g to Dhanaraj Ammal, the mother of the plaintiff and the defendants and that she purchased the suit property under a registered Sale Deed dated 31.05.1944 with her own funds and also purchased the adjacent property - Door No.28, which is not the subject matter of the suit; after purchase of the suit property, Dhanaraj Ammal got possession of the same and also exercised acts of ownership by leasing out the suit property to one Ponnusamy Padayachi, under registered rent deed dated 19.08.1945; she died intestate on 08.02.1953 leaving the plaintiff and the first defendant as her only legal heirs and on her death, as per the Hindu Law prevailing then, the suit property and the other adjacent house No.28 devolved upon the plaintifff and the first defendant. 2(a). It is the further case of the plaintiff before the Court below that Dhanaraj Ammal has been residing in the suit property with her husband Subbiah and her children  the plaintiffs and the defendants herein; the Municipal Tax Assessment for the suit property has been in her name and she has been paying the house tax; after her death in 1953, the plaintiff, her father, the defendants and plaintiff's another brother, Aranganathan continued to live in the suit property and the adjacent property. Even after the plaintiff and the first defendant got married and went to live in their husband's place, their father and their brothers continued to live in the suit property in permissive possession. The plaintiff has stated that she came back to live in the suit property along with her husband in 1970 and after her father's death in the year 1988, when she wanted to put up a new construction in her half share in the suit property, she demanded the first defendant to enter into a partition and allot her share and she also demanded the defendants 2 to 4 to vacate the portion in their occupation, in order to enable her to put up the new construction in her half share. But, the defendants 2 to 4 delayed the partition by colluding with the first defendant. Unwilling to be in joint possession, the plaintiff filed a suit in O.S.No.34 of 1990 claiming half share in the suit property and the other adjacent house. 3. The defendants 2 to 4 in their written statement have denied the plaint averments as false and has stated as under: (a) Subbiah Padayachi and Dhanaraj Ammal had four daughters and four sons; the daughters are Sridevi (1st defendant), Sumathy, Santha (plaintiff) and Sudandara Devi; Sumathy died in or about 1959 and Sudandara Devi died in or about 1961; The sons are Aranganathan, Subburamalingam (2nd defendant), Sridharan (3rd defendant) and Imayavarambhan (4th defendant). Subbiah was having debts payable to third parties; hence he purchased the suit property benami in the name of his wife Dhanarajmmal out of his funds and for his benefit; similarly, the adjacent item Door No.28 was also purchased benami in the name of Dhanaraj Ammal; Dhanaraj Ammal had no means to purchase the properties; hence, Subbiah was the absolute owner and in possession of the suit property and the house at Door No.28; the Municipal Bill was standing in the name of Subbiah and he was paying Municipal Tax; (b) While so, he executed a registered settlement deed dated 20.08.1971 in respect of Door No.29-A in favour of the second defendant and put the 2nd defendant in possession of the same; the 2nd defendant accepted the settlement deed, took possession of the property and since 20.08.1971, the 2nd defendant has been exercising the acts of ownership for Door No.29-A; he changed the Municipal registry in his name from the name of Subbiah, and he has been paying Municipal tax; he executed a registered bogyam deed dated 07.09.1972 in favour of one Krishnamoorthy Chettiar and delivered possession of Door No.29-A to Krishnamoorthy and since then, Krishnamoorthy was in actual possession of Door No.29-A as usurfructory mortgages; later, Krishnamoorthy assigned the bogyam dated 07.09.1972 in favour of one Radhabai Ammal under a registered bogyam deed dated 09.07.1974 and put her in possession of the property as bogyamdar; later, the 2nd defendant filed a suit for redemption against Radhabai Ammal in O.S.No.510 of 1983 on the file of the District Munsif Court, Chidambaram and the decree was passed on 20.02.1990; the said Radhabai has filed A.S.No.25 of 1990 against the decree in O.S.No.510 of 1983 and the same is pending; according to the 2nd defendant, the plaintiff and the 1st defendant had knowledge of all these transactions then and there, but they never asserted any title of right to possession of Door No.29-A at any time. (c) Subbiah executed a registered settlement deed dated 02.04.1979 in favour of the 3rd defendant in respect of a portion of Door No.29, and put 3rd defendant in possession of the same; the 3rd defendant accepted the settlement deed and took possession of the property, changed Municipal Registry in his name from the name of Subbiah, and he has been paying Municipal Tax for the property; it was sub-divided as Door No.29/a; he gave the same as surety to Chidambaram Co- operative Urban Bank under a registered mortgage deed dated 21.11.1983. Once again, the 3rd defendant executed another registered mortgage deed dated 18.10.1988 in favour of Urban Bank, Chidambaram. All these transactions took place to the knowledge of the plaintiff and the 1st defendant, but they never asserted any title or right to possession of the suit property. (d) Subbiah executed a registered Will dated 12.12.1980 in sound and disposing state of mind in favour of the 4th defendant under which he gave the remaining extent of Door No.29 to 4th defendant absolutely; on his death, the Will took effect and the 4th defendant became the owner of the remaining extent of the suit property with Door No.29; he changed the Municipal Registry in his name and since the death of Subbiah, he has been paying Municipal Tax. It is their further submission that the registered settlement deed dated 28.08.1964 executed by the plaintiff and the 1st defendant in favour of Aranganathan is not sham and nominal, but they are genuine transactions and that the settlement deed will prove that Door No.28 was also purchased benami in the name of Dhanaraj Ammal by Subbiah. (e) It is also stated that even at Chidambaram, the plaintiff was residing at rented house; she was abandoned by her husband and she went to the extent of committing suicide at Tindivanam in her husband's house; hence, Subbiah brought her to Chidambaram and permitted her to reside in the garden portion of suit property in or about 1975; the plaintiff or the 1st defendant never asserted any title for the suit property at any time, they never paid Municipal Tax for the suit property and it is only Subbiah and the defendants 2 to 4, who have been in possession of the suit property as absolute owners. Therefore, as the plaintiff's title for the suit property is not admitted by the defendants 2 to 4, the suit is not maintainable and the plaintiff cannot claim any share muchless to half share in the suit property. 4. The Trial Court, on consideration of the facts and circumstances of the case and on analysis of the material records partly allowed the suit that the plaintiff is entitled to 1/4th share in the suit property. 5. Learned counsel for the appellants contended that the Lower Court erred in holding that Ex.A1, Sale Deed executed in favour of Dhanaraj Ammal is not a benami sale and it ought to have relied upon Ex.B1-Settlement Deed dated 20.08.1991 to hold that Ex.A1 is a benami sale, as Subbiah himself has mentioned Ex.A1 as benami sale in Ex.B1 in 1971 itself. He further contended that the Lower Court ought to have held that the plaintiff never claimed title for the suit property at any time before the suit from 1944 onwards, as she was residing in a rented house, while the defendants 2 to 4 were residing in the suit house; It was his further contention that the Lower Court ought to have seen that inasmuch as the Settlement Deed to 2nd defendant and the Will, Ex.A32 in favour of the 4th defendant have been found to be true, the portions settled on the former and bequeathed to the latter ought to have been excluded. 6. Learned counsel for the appellants strenuously contended that the Lower Court failed to see that adverse possession and ouster may commence from 1991, the date of Ex.B1 and the suit filed 19 years thereafter is clearly out of time and that the suit ought to have been dismissed on that ground itself. In support of his contentions, learned counsel for the appellants has relied on the following decisions : (i) This Court, in 1907 (XVII) MLJ 339 in the case of Sanjivaroya Pillai vs. Balambiki Ammal and others has held as under: In his Hindu Law, 7th Edition, page 590, Mr.Mayne observes on this judgment, which was reversed by the Privy Council on the facts, that it can hardly be said that there is an absence of evidence as to the origin of the purchase money unless there is evidence that the wife as well as the husband possessed funds from which the purchase might have been made. There is no such evidence in this case. The plaintiffs made no attempt to show either that the purchase-money came from the wife or that the properties had been enjoyed by them and not by the second defendant, an even more important test, but contended themselves with calling the karnam who knows nothing about these matters and proving certain acts done in the name of the first plaintiff which are quite consistent with a holding benami for the husband. On the other hand, we have uncontradicted evidence of the first defendant that the properties had been in the enjoyment of the second defendant and that he received the proceeds of the sale and the mortgage, Exhibits C and E. In the circumstances of the present case the source of the purchase-money and the manner in which the properties have been enjoyed were most material for the determination of the issue as to whether the properties belonged to the second defendant. The first was a matter peculiarly within the knowledge of the first plaintiff, and the second, a matter peculiarly within the knowledge of both plaintiffs; and we think that, in accordance with S.106 of the Indian Evidence Act, the onus lay on them to show tha the purchase- money was supplied by the wife and that the properties had been in the enjoyment of the plaintiffs and that as they have failed to discharge this onus it must be taken that the purchase money was supplied by the husband, the second defendant, and that the properties have all along been in his enjoyment. The conclusion necessarily follows that the properties were held benami for the second defendant, and we must, therefore, allow the appeal, reverse the decree of the District Judge and restore that of the District Munsif with costs in this and the Lower Appellate Court. (ii) In A.I.R. 1935 Patna 231 in the case of Zinda Ram Madan Lal vs. Ramrup Das and others, the Patna High Court has held as under: In the case decided by the Allahabad High Court the house in dispute stood on the side of an old kuchha house which had been purchased in the name of the plaintiff and subsequently the new construction was erected at a cost of nearly Rs.2,000. The learned Judges found that that defendant 2 had built the house and remained in possession there-of and this in their opinion was sufficient to rebut the presumption arising in plaintiff's favour by reason of his being the ostensible purchaser under the title deed. Their Lordships in this connection observed as follows: Prima facie where a person makes a costly building on a site and remains in possession of the building for a considerable length of time the presumption is that he had a right to build on the land. In the circumstances of this case, such right can only be referable to the circumstances that he was the owner of the land. He could be the owner of the site if the sale thereof was benami for him. ... The circumstances which are usually taken into consideration in to consideration in deciding whether a certain transaction is benami or not are, among others, the possession of the property, source of consideration money, custody of the title deed and motive. It has already been pointed out that it is not seriously challenged in this case that the defendants' second party have been in actual possession of the house for a long time and my learned borther has elaborately dealt with the significance and value of the chaukidari receipts and rent receipts. As to the source of the consideration money it is true that Triloki Mahto, the vendor of the house, supports the plaintiff in so far as he states that he received the consideration money from the hands of the plaintiff; but even this person, who is undoutbedly the best of the plaintiff's witnesses has stated in his examination-in- chief I do not know if the house was on rent or it belonged to Dasai Sao and again in cross- examination I do not know who re-constructed the house. As to the custody of the deed, it undoubtedly purported to have been tendered in evidence on behalf of the plaintiff, but it does not necessarily follow that the actual custody of the deed was with the plaintiff. Some of the statements made by the plaintiff's own witnesses make it highly doubtful that the plaintiff himself is fighting the present case, and if this fact is doubtful it is also doubtful that the document came from his custody when it was produced in Court. ... On the question of motive, it has been suggested that sometimes wealthy purchasers purchase property in the name of other persons in order to keep down the price and the present case may be one of that type. However that may be benami transactions are so common in India and are so frequently entered into without any apparent motive that where other circumstances clearly point to the benami character of a particular transaction, the mere fact that there is no apparent motive for the property being purchased in another person's name may not be sufficient to out-weigh the cumulative effect of the other circumstances. I may also usefully refer here to the following observations made by the Judicial Committee in the case of 1919 Crl. 181 (7). In regard to benami transactions Courts of law should not approach them with that scrupulous rigour which in other systems of jurisprudence may demand the existence of the clearest positive evidence that the ex facie owner of a property is a trustee for or holds the same for the interest of another. Benami transactions are very familiar in India practice and even a slight quantity of evidence to show that it was a sham transaction will suffice for the purpose. (iii) In yet another judgment reported in AIR 1955 Madras 648 in the case of P.Krishna Bhatta and others vs. Mundila Ganapathi Bhatta (died) and others, this Court has held as follows: (19). In order to find out what is the real intention of the parties to a transaction, no hard and fast rule can be laid down, but each case, as it arises, must be decided according to its own peculiar circumstances and probabilities. In scanning the circumstances and weighing the probabilities, he consensus of legal decisions lay down that we must have regard to the following facts, viz.. (i) the source from which the purchase money was derived; (ii) the possession of the property, i.e. (a) the party in possession, and the nature and character of his possession; (b) whether possession was taken after the alleged gift or purchase  If not taken, why not; (iii) the position of the parties and their relation to one another; (iv) the circumstances, pecuniary or otherwise of the alleged transferor; (v) his motive in making the alleged transfer; (vi) the custody and production of the title deed; and (vii) the previous and subsequent conduct of the parties. But it must be noted here that each of these circumstances taken by itself is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. One of them may be of greater value than the other; for instance, the source of the purchase money has always been regarded as the most important criterion, though it, in no sense, affords conclusive proof of the matter. But a combination of some or all of them and a proper weighing and appreciation of their value would go a great way towards indicating whether the ownership has been really transferred, or where the real title lies. But these circumstances when combined, or each one of them by itself, only raise a presumption of real ownership in favour of the party, who is able to prove all or any of them, and thereby shift the burden of proof to establish his title to the property in question upon the opposite party, and in case he is unable to discharge the burden by adducing evidence of some one or other of the facts indicated above to rebut the presumption, he will fail. But if he is able to produce such evidence, a presumption will again arise in his favour and thereby the burden of proof will be shifted to the other party. And thus after raising proper presumptions and placing the burden of proof upon proper parties, we must see whether the facts proved in this case fit in consistently with the theory of the benami or real course of dealing with the property and judge accordingly. (iv) The Supreme Court, in AIR 1974 SC 171 in the case of Jaydayal Poddar through L.Rs. And another vs. Bibi Hazra and others, has held as under: 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 indicia, 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 conduct of the parties concerned in dealing with the property after the sale. ... (v) This Court, in 2002 (2) MLJ 110 in the case of Kannammal vs. Balaraman and another has held as under: 6. ... The plaintiff has come forward with the case claiming right on the basis of the Settlement Deed marked as Ex.A-12, dated 05.09.1972 executed by late Marimuthu, her husband. Though the plaintiff has come forward with the plea that the said Marimuthu purchased the property from out of his funds under Ex.A-1, benami in the name of Kannammal, the said fact alone cannot be taken into consideration to reject the alternative case of the defendants. Even assuming that Marimuthu purchased the property in the name of his first wife Kannammal, if the intention was only for the benefit of Kannammal, the plaintiff cannot sustain the suit and so the plaintiff has to establish that the property was purchased by Marimuthu himself benami in the name of Kannammal for the benefit of Marimuthu and not for the benefit of Kannammal herself. Though the trial Court rejected the case of the defendants that the property was purchased under Ex.A-1 from out of the funds of their mother the trial Court has not at all considered the alternative defence that has been taken by the defendants to the effect that even assuming that Marimuthu purchased the property in the name of Kannammal, it is only for her benefit. Unfortunately, the lower appellate Court also has not considered the case of the defendants that the property was purchased by Kannammal herself by paying consideration out of her own funds. The lower Appellate Court has reversed the judgment of the trial Court only on the ground that the Benami Act of 1988 will apply to the facts of the case though the said finding cannot be sustained in view of the judgment of the Apex Court reported in R.Rajagopal Reddy (dead) vs. Padmini Chandrasekaran, A.I.R. 1996 S.C. 238. Even with respect to the intention of the lower Appellate Court has simply found that the plaintiff has not established that Marimuthu purchased the property with intention to retain the benefit for the family in the said property. 7. ... I am inclined to remit the suit afresh framing proper issues even with reference to the alternative plea raised by the defendants regarding the intention of Marimuthu to purchase the property for the benefit of his first wife Kannammal. (vi) The Madurai Bench of this Court in MANU/TN/7448/2006 in the case of Rita Florence vs. Sivagami Achi has held as under: 20. Regarding Exs.A3 and A.4, the lower Appellate Court has opined that when the construction of building was over by 1987, the plaintiffs ought to have produced property tax receipts for the year 1988 and 1989 and since they have not produced the same and instead, they have produced the tax receipts pertaining to 1990 and 1991, it gives room for suspicion. Even assuming that it is the respondent/defendant who had built the suit property,