IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 Mat.Appeal.No. 208 of 2004() ---------------------------- OP.165/1997 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- S.KRISHNAN NAIR, PERUMBALAMON VEEDU, NALENCHIRA, TRIVANDRUM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): PETITIONER ------------------------- S.JAYAKUMARI, EDAVAMKUNNU VEEDU, PATTUVILAKOM, THUNDATHIL P.O., KARYAVATTOM, TRIVANDRUM. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R1 SRI.K.VINODKUMAR FOR R1 SRI.P.K.MANOJKUMAR FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal No.208 of 2004 ------------------------------------------------- Dated this the 28th day of October, 2009 JUDGMENT Basant,J. Has the appellant succeeded in establishing that Ext.B5 transaction is a `benami transaction'? If so, has he succeeded in “proving the contrary” as required and insisted by Section 3 of the Benami Transactions (Prohibitions) Act, 1988 (hereinafter referred to as 'the Act')? These are the only serious questions that come up for consideration in the light of the arguments specifically advanced before this Court by the learned counsel for the appellant. 2. The relevant and vital facts first. The appellant and the respondent are spouses. Their marriage was dissolved by mutual consent during the pendency of this appeal as per an order passed under Section 13B of the Hindu Marriage Act in Mat Appeal No.207/2004 on 27-10-2009. Their marriage took Mat. Appeal No.208 of 2004 -: 2 :- place on 21-1-1986. They resided together for some period of time after such matrimony. There is a serious dispute about the date on which separate residence commenced. Admittedly, when separate residence commenced, whether it be in January 1987 as contended by the appellant or on 17-12-1986 as contended by the respondent in this proceedings or on 9-11-1986 as contended by the respondent in Ext.A4, it is not disputed that such separate residence started after she became pregnant and before the child was born on 5-3-1987. Subsequently, the spouses have not been able to settle their disputes and resume co-habitation. Such separate residence admittedly continues till this date. We, after laborious attempts, were finally able to induce the parties to arrive at a settlement and dissolve the marriage as per the order in Mat appeal No.207/2004 referred above. 3. On 15-12-1986 as per the original of Ext.B5, 12.75 cents of land were purchased in the name of the respondent. Straightaway we note that the averments in the said document reveal clearly that the sale consideration was paid by her. Admittedly, there is nothing intrinsically available in the document to suggest that payment was made by any one other than the respondent herein. Mat. Appeal No.208 of 2004 -: 3 :- 4. After the parties started separate residence, the appellant/husband initiated proceedings for restitution of conjugal rights. Shortly after that proceedings was initiated, the respondent/wife initiated the present proceedings - O.P.No.165/1997. Various prayers were made in the petition. Primarily, a declaration of a title over the property acquired under Ext.B5 was claimed. Recovery of possession of that property which was in the possession of the appellant in his capacity as the husband of the respondent was also claimed. 5. The appellant/husband entered appearance and resisted the claim. According to the learned counsel for the appellant, he had raised a plea that the acquisition was made by him with his funds benami in the name of the respondent. The learned senior counsel for the respondent points out that such a specific plea was not at all raised in the written statement. 6. Be that as it may, it is clearly stated and contended in the written statement that the acquisition was made in the name of the respondent with the funds advanced by the appellant. The appellant contended that the respondent/his wife was only a name lender and trustee on behalf of the appellant. A plea that it was a benami transaction, we note, was not specifically raised in the written statement or in the appeal memorandum. The Mat. Appeal No.208 of 2004 -: 4 :- claim for recovery of possession was resisted on the further ground that the appellant is not in possession of the property and his brother - P.W.2, is in possession of that property asserting leasehold rights under Ext.A6. The neighbours had not been arrayed as parties and therefore the claims of recovery of possession and putting up a boundary (which was also claimed) were resisted on that ground. 7. Parties went to trial on those contentions. The appellant examined himself as P.W.1. His brother - the alleged lessee was examined as P.W.2. The respondent/plaintiff examined herself as R.W.1 (not P.W.3 as shown in the appendix to the impugned judgment). The matter was disposed along with two other applications. The appellant led evidence and that was the reason why he has figured as P.W.1 and respondent as R.W.1. Exts.A1 to A9 were marked on the side of the appellant and Exts.B1 to B5 were marked on the side of the respondent herein. Exts.A1, A2, A3, A7 and A8, counsel stipulate are not relevant to the surviving disputes in this appeal. The learned counsel for the appellant only relies on Exts.A4, A5, A6 and A9. Exts.A4 and A5 are the pleadings in O.P.No.237/87 - an earlier application for restitution of conjugal rights and the appeal therefrom. Ext.A6 as stated earlier is the document Mat. Appeal No.208 of 2004 -: 5 :- under which P.W.2 claims to have a leasehold right over Ext.B5 property. Ext.A9 is the deposition of the respondent in that earlier proceedings for restitution of conjugal rights. 8. Of the documents marked on the side of the respondent herein, it is conceded that Exts.B2 to B4 are irrelevant for the surviving dispute. Ext.B1 is a copy of the judgment passed by this Court in the appeal against the decree passed in the proceedings for restitution of conjugal rights. Ext.B5 is a copy of the admitted sale deed under which the plaint schedule property was acquired in the name of the respondent herein. 9. The court below, on an anxious consideration of all the relevant circumstances, came to the conclusion that there is nothing to show that Ext.B5 acquisition was not for the benefit of the ostensible owner - the respondent herein. The court below found that there was nothing to indicate that the respondent was only a name lender i.e., a trustee as claimed by the appellant. The plea that the appellant was not in possession of the plaint schedule property and that it was in the possession of P.W.2 - his brother, was found against as there was no recital to that effect in Ext.B5 and as Ext.A6 was found to be totally not genuine and unacceptable. The court below, in these circumstances, proceeded to decree the suit in part granting the relief of Mat. Appeal No.208 of 2004 -: 6 :- declaration and recovery of possession. 10. Before us the learned counsel for the appellant and the respondent have advanced their arguments. The learned counsel for the appellant assails the impugned decree on the following grounds: (1) The relief of declaration should not have been granted as the original of Ext.B5 had not been produced. (2) The suit is bad for non-joinder of necessary parties. P.W.2 and the other neighbours of the property must have been arrayed as defendants. (3) The court below ought to have held that Ext.B5 is a benami transaction and the appellant had discharged his burden under Sec.3(2) of the Act to show that the acquisition was not for the benefit of the respondent. 11. Grounds 1 & 2: It is contended that the original of Ext.B5 has not been produced. Ext.B5 that has been marked is not the original document. It is not even a certified copy. It is only a photocopy of the document. In these circumstances, the document should not have been looked into at all, contends the learned counsel for the appellant. 12. Technicality apart, we do note that both sides stand by Mat. Appeal No.208 of 2004 -: 7 :- Ext.B5. Admittedly the original of Ext.B5 is with the appellant and not with the respondent. A specific contention that Ext.B5 does not do justice to the original has not been urged at all. Though ideally and to comply with the technicality the original or a certified copy should have been produced or at least the appellant must have been called upon to produce the original before secondary evidence is adduced, we reckon the same as absolutely irrelevant and inconsequential in the nature of the dispute that is unfolded before us. Both stand by Ext.B5 and we are satisfied that the technical inadequacy of the original have not been produced by either side cannot militate against the claim raised and granted under the decree. The challenge raised in ground No.1 therefore fails. 13. Coming to ground No.2, the contention is that the neighbours have not been arrayed as parties; though a claim for putting up the boundary was made; that relief was not pursued seriously and the same has not been granted by the court below. There is no dispute about the identity of Ext.B5 property. In these circumstances, the non-impleadment of the neighbours - holders of properties on the boundary cannot in any way affect the validity of the impugned decree for declaration and recovery of possession. In the absence of any dispute regarding identity Mat. Appeal No.208 of 2004 -: 8 :- of the property, we are satisfied that it must be possible to identify the property in the course of execution. 14. It is contended that P.W.2 - Sreedharan Pillai, must have been arrayed as a defendant. He is a close relative/brother of the appellant. According to the respondent, the said Sreedharan Pillai has no rights or possession whatsoever in the property and he is only a name lender for the appellant obliging him in the attempt to delay and protract the proceedings. The said Sreedharan Pillai claims possession anterior to Ext.B5. Whether acquisition was by with the funds of the appellant or that secured by the respondent. The appellant is responsible for the averments in Ext.B5. Ext.B5 does not recite at all that P.W.2 - Sreedharan Pillai has any anterior possession. Though P.W.2 was examined as a witness, there is not a semblance of material placed before the court to indicate that he had any anterior possession prior to Ext.B5 or thereafter. Less said about Ext.A6, the better as noted by the court below. It is a compulsory registrable document; but the same has not been registered. The execution of that document has not been proved satisfactorily. It may not be inapposite in this context to note that the stamp paper has not been purchased either in the name of the lessor or lessee. The learned counsel for the appellant Mat. Appeal No.208 of 2004 -: 9 :- rightly points out that the said document bears a date subsequent to 1/1/70 and recites an anterior oral lease of 1965. The learned senior counsel for the respondent points out that such alleged lease would be hit by Sec.74 of the Kerala Land Reforts Act also. At any rate, we note that except the self- serving assertions of P.Ws.1 and 2 and the unsatisfactory Ext.A6 document, there is nothing to show that P.W.2 - Sreedharan Pillai has any semblance of right or possession prior to or anterior to Ext.B5. His non-impleadment will not affect the suit. He has not chosen to get himself impleaded even after having been apprised of the nature of the dispute raised in this case. That again is not irrelevant. In these circumstances, the challenge raised on ground No.2 must also fail. 15. Ground No.3: We now come to the main contention raised that Ext.B5 is a benami transaction and that the appellant has discharged his burden under Sec.3(2) of the Act to prove the contrary. 16. The learned senior counsel for the respondent urges before us that a person pleading that a transaction is benami and that the ostensible owner is not the real owner of the property has a very heavy and onerous burden to discharge under the general law. The learned counsel contends that his burden is all Mat. Appeal No.208 of 2004 -: 10 :- the more after the Act. The learned senior counsel relies on para-7 of Sarada Bai v. Suresh Chander Chawhan (2004 (2) KLT 610 (DB)). We extract the same below: “7. In Gangadara Ayyar v. Subramania, AIR 1949 F.C. 88, the Federal Curt held that it is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. It is for the plaintiff to conclusively establish that it was a benami transaction. A Constitution Bench of the Supreme Court in Surasaibalini v. Phanindra Mohan, AIR 1965 SC 1364 reiterated the above proposition of law. The Supreme Court in the above decision held that even though the source of the funds from which the purchase is made is one of the consideration, the manner of enjoyment of the property is a very important factor for establishing the case of benami and the mere proof of the source of the purchase money would not finally establish the benami nature of the defendant's title. The Court will presume an ostensible owner to be the real owner unless a plaintiff who seeks to assert the contrary pleads and proves that the ostensible owner is not the real owner. In Jaydayal Poddar v. Bibi Hazra, AIR 1974 Mat. Appeal No.208 of 2004 -: 11 :- SC 171, the Supreme Court again reiterated the above position and held that 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 Supreme Court further held 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. The nature of possession of the property after purchase, the motive, if any, for giving the transaction a benami colour, position of the parties and their relationships, custody of the title deeds after the sale and the conduct of the parties concerned in dealing with the property after sale are also important factors in determining the nature of transaction apart from the origin of money.” Mat. Appeal No.208 of 2004 -: 12 :- 17. It is trite that parties go for preparation of document with open eyes and after due deliberation. It must be presumed that the parties have prepared the document after sufficient forethought. It has hence got to be assumed and presumed that the ostensible owner is the real owner of the property. But that presumption is not a rigid or inflexible one. Such an approach can be deviated from where materials are placed before the court on the peculiar facts to show that the transaction is, in fact, a benami transaction. 18. We come to the relevant inputs now. It is not pleaded in the written statement that there was any compelling reason to take the property in the name of the respondent and not in the name of the appellant. Of course, in the course of evidence a valiant attempt is made to contend that there was animosity between the vendor and the appellant and the vendor of Ext.B5 property would not have assigned the property to the appellant or his relatives. That is why the assignment was taken in the name of the respondent, it is now contended. No specific pleadings to that effect are raised in the written statement. If really such a crucial circumstance was there, it is idle to assume that such a circumstance would not have been pleaded in the Mat. Appeal No.208 of 2004 -: 13 :- written statement. 19. Recitals in the document Ext.B5 clearly show that the sale consideration was paid by the respondent. Of course, the case of the respondent is that she secured the money from her father. But Exts.A1, A2 and A3 documents amply suggest that the respondent is not an impecunious person. Even going by the stand taken by the appellant, which stand he attempted to substantiate for production of Exts.A1 to A3, the respondent did have properties. Suffice it to say that it is clearly stated in Ext.B5 that the consideration was given by the respondent. 20. It is also relevant to note that there is no direct evidence forthcoming as to who had made the payment. The burden undoubtedly is on the appellant to show that the payment was made not by the respondent as averred in Ext.B5; but by the appellant. Absolutely no evidence has been adduced to show that the consideration for the document Ext.B5 was raised by the appellant or was paid by him to the vendor in Ext.B5. No witnesses to the document have been examined. To sum up, significantly there is no evidence to show that the consideration was paid not by the respondent; but by the appellant. 21. It is the common case of both sides that the original document was retained by the appellant. It is also the admitted Mat. Appeal No.208 of 2004 -: 14 :- case that the appellant was keeping possession of the property. Considering the nature of the intimate relationship between the appellant and the respondent - spouses, those indications are too meagre and insufficient to readily accept and swallow the contention of the appellant that Ext.B5 represents a benami transaction. 22. The learned counsel for the appellant has trained all his guns at certain seeming incongruities in the version of the respondent in her pleadings and evidence in this case. As against her pleadings and evidence in the proceedings for restitution of conjugal rights, the learned counsel relies on Exts.A4, A5, A9 and B1 to strenuously contend that the present version of the appellant is belied by her earlier pleadings and evidence in such proceedings. The court below has taken note of the same. We do take note of that seeming incongruity between the version then and now about the precise date on which separate residence had commenced. The very strenuous attempts made on that aspect are found to be of not much substance. Marriage, residence together, pregnancy and separate residence are all admitted. The short dispute or controversy is about the precise date of commencement of the separate residence. Very evidently separate residence had Mat. Appeal No.208 of 2004 -: 15 :- started after marriage and after conception and before child birth. Undue importance or significance cannot, in these circumstances, be attached to the incongruity in the specific recital and assertions about the date of commencement of separate residence. 23. The learned counsel contends that Ext.B5 was executed on 15/12/86; whereas separate residence is alleged to have commenced on 17/12/06 as per the present pleadings and on 9/11/86 as per the pleadings in Ext.A4. It is contended that it is highly improbable that after the commencement of the separate residence on 9/11/86 purchase could have been made under Ext.B5. It is also contended that it is improbable that separate residence would have commenced within two days of Ext.B5. Here again we do not find much significance or importance for this controversy. Even going by the version of the appellant, separate residence had commenced in January, 1987 and Ext.B5 purchase was made on 15/12/86. It is the case of the respondent that persistent demands were made for property and it was, in these circumstances, that Ext.B5 acquisition was made in the name of the respondent on 15/12/86 before she left to her parental home for delivery. We do not attach any crucial significance on this gap of time between Mat. Appeal No.208 of 2004 -: 16 :- Ext.B5 and the alleged separate residence. 24. The learned counsel for the appellant contends that Ext.A4 is crucially relevant for one other aspect. According to him, the respondent had admitted that her father did not have the resources to pay even Rs.50,000/-. According to the respondent, not Rs.13,000/- as shown in Ext.B5 was paid as consideration; but Rs.1 lakh was paid as consideration for Ext.B5. It is her case that the amount required for purchase of Ext.B5 was secured through her father and a person who admittedly did not have resources of Rs.50,000/- was unlikely to advance Rs.1 lakh for purchase of Ext.B5 as contended by the respondent, argues the learned counsel for the appellant. 25. The statement of respondent in Ext.A4 cannot be read as though it is a statutory provision. Due allowance will have to be given to exaggeration in pleadings. The mere fact that in response to a claim for restitution of conjugal rights such a plea was raised cannot also lead to this Court to ignore the recitals in Ext.B5 and conclude that the purchase was made by the appellant. 26. Reliance is placed on Exts.A4 and A9. But it is significant to note that the specific portions allegedly contrary to the deposition of respondent/R.W.1 in court were not brought to Mat. Appeal No.208 of 2004 -: 17 :- her attention and her explanation was not solicited. In these circumstances, the attempt to place crucial reliance on the alleged incongruous statements in Exts.A4 and A9 cannot also obviously succeed. Opportunity to explain the alleged contradictions has not been offered to the respondent as insisted by law. 27. We come back to Sec.3(2) of the Act. Even if it is proved that it is a benami transaction, the inference is irresistible that the purchase was for the benefit of the wife. Contrary has to be pleaded and proved. We do not find any merit in the contention that the expression “unless the contrary is proved” can lead this Court to the weird conclusion that such proof can be attempted without pleadings. To prove every fact that has got to be pleaded. The attempt to adduce evidence in proof contrary to the pleadings would amount to taking the adversary by surprise and to denial of natural justice. To prove contrary, there are no pleadings at all. Though it is contended belatedly at the stage of evidence that acquisition had to be made in the name of the wife suppressing her identity for fear that the vendor with whom the appellant has some alleged animosity may not have been prepared to assign the property to the appellant or any one related to the appellant, that is not Mat. Appeal No.208 of 2004 -: 18 :- pleaded or substantiated satisfactorily. Such a plea is not specifically raised; nor is it substantiated satisfactorily. When P.W.2 was in the box, evidence has been attempted to show that the vendor in Ext.B5 is the wife of Vasudevan Pillai - an uncle of the appellant. There is no worthwhile attempt to establish that the said vendor or Vasudevan Pillai had any animosity or ill-will against the appellant. In these circumstances, the attempt to contend that acquisition had to be made in the name of the respondent suppressing her identity as the wife of the appellant cannot obviously succeed. 28. The upshot of the above discussions is that there is absolutely nothing available to sail a satisfactory conclusion either that the acquisition was benami or that even if benami the burden on the appellant under Sec.3(2) of the Act has been discharged. We are, for the sake of arguments, assuming that the appellant had wanted to raise this contention though such a specific contention - that the acquisition was