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DHANALAKSHMI V/S DEVAKI AMMAL & OTHERS, decided on Friday, April 26, 2013.
[ In the High Court of Madras, S.A. No. 1390 of 2000. ] 26/04/2013
Judge(s) : G. RAJASURIA
Advocate(s) : N. Nagu Sah. R1 to R6, Ms. C.R. Rukmani.
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    Transfer of Property Act - Section 123 - Indian Evidence Act - Sections 68 Section 69 - Benami Transactions (Prohibition) Act 1988 Benami Transactions (Prohibition) Act 1988 - Section 4(3) - Appeal by second plaintiff against the order of First Appellate Court reversing the Order of Munsif Court in the suit for recovery of possession and for permanent injunction based on settlement deed -The Court held ? Settler created herself a life interest in the suit property and vested the remainder in favour of her grandson - Wills have the right to alienate the property in question jointly ? Intention of the settlor was very clear that the settlement was to come into effect after the death of settlor - Settlee given the right to receive the rent during the life time of the settlee therefore the settlement was only a Will ? Therefore those documents are only Wills and not settlement deeds - Second plaintiff claimed right over the suit properly only under those Wills which are bound to be proved - An opportunity has to be given to the appellant/second plaintiff in this regard and further opportunity to put forth for additional pleadings - Judgments of both the Courts below should be set aside and the matter has to be remitted back to the trial Court so as to enable both sides to file additional pleadings ? Petition disposed of. (Paras 13 18 26 30 & 33).Cases Referred:Kokilambal and others vs. N. Raman (2005 (3) LW 736).Rajammal vs. Pappayee Ammal (2002 (4) CTC 406).Arthur Mary Ammal vs. Aruldoss Pillai (Deceased) and others (2003 (3) MLJ 229).Rasu Pillai vs. Muthukumaran and another (2004 (4) MLJ 619).Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (dead) through L.Rs (2012(1) MWN (Civil) 840 (S.C.)Turlapaty Rajeswara Rao & Anr. vs. Kamarajugadda Rangamma & Ors. reported in (1949) 1 MLJ 480 (Vol.96)P. Ram Mohan vs. Lalitha Raghuraman & Ors. reported in (AIR 1976 Madras 333 = 89 L.W.175).Ritesh Tiwari and another vs. State of Uttar Pradesh and others (2010(10) SCC 677).R. Rajagopal Reddy(Dead) By Lrs. And Others Vs. Padmini Chandrasekharan(Dead) By Lrs (1995) 2 Supreme Court Cases 630).     (Prayer: This second appeal is filed against the judgment and decree dated 31.3.2000 passed by the Subordinate Judge Maduranthakam Chengalpet District reversing the judgment and decree dated 26.2.1999 passed by the Distict Munsif Maduranthakam in O.S.No.122 of 1994.)This second appeal is focussed by the second plaintiff inveighing the judgment and decree dated 31.3.2000 passed by the Subordinate Judge Maduranthakam Chengalpet District reversing the judgment and decree dated 26.2.1999 passed by the Distict Munsif Maduranthakam in O.S.No.122 of 1994 which was one for recovery of possession and for permanent injunction.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. A summation and summarisation of the germane facts absolutely necessary for the disposal of this second appeal would run thus:(a) The plaintiffs filed the suit seeking the following reliefs:i) to direct the defendants to deliver possession of suit properties to plaintiffs;ii) to pay plaintiffs profits till the date of deliveryiii) to grant permanent injunction against the 2nd defendant not to pay the sugarcane price to 1st defendant until the defendant pays profits to plaintiffs;(iv) to direct the 1st defendant to pay cost of the suit.(extracted as such)(b) The first defendant filed the written statement resisting the suit. D2 is only a formal party.(c) Whereupon issues were framed. Up went the trial during which the first plaintiff examined herself as P.W.1 along with P.W.2(the 2nd plaintiff) and marked Exs.A1 to A9. The first defendant examined himself as D.W.1 along with D.W.2 and marked Exs.B1 o B39.(d) Ultimately the trial Court decreed the suit as against which the legal heirs of the first defendant preferred the appeal (since the first defendant died before filing of the appeal); whereupon the first appellate Court reversed the judgment and decree of the trial Court and dismissed the suit.4. Challenging and impugning the judgment and decree of the first appellate Court the second plaintiff preferred this appeal on various grounds and also suggesting the following substantial question of law:1.Whether the lower appellate Court is right in holding that mother is a coparcener within the meaning of Sec.4(3)(a) of Benami Transactions (Prohibition) Act 1988.5. Heard both.6. My learned predecessor formulated the following substantial question of law.Whether the lower appellate Court is right in holding that mother is a coparcener within the meaning of Section 4(3) of the Benami Transactions (Prohibition) Act 1988. (extracted as such)7. On hearing both sides I was of the opinion that the following additional substantial questions of law should be framed to the knowledge of both sides.(i) Whether the parties as well as the Courts below were justified in proceeding on the footing that Exs.A3 and A7 are the settlement deeds even though the recitals would speak that they are the Wills executed by the first plaintiff in favour of the second plaintiff?(ii) Whether the provisions of the Benami Transactions (Prohibition) Act 1988 have been properly applied and findings rendered by the Courts below?(iii) Whether the first appellate Court was justified in holding that the suit properties should be held by the first plaintiff and D1 as trustees for the children of D1?8. Heard both sides on those substantial questions of law.9. All the substantial questions of law are taken together for discussion as they are interwoven and interconnected interlinked and entwined with each other.10. A resume of facts absolutely necessary for the disposal of this second appeal would run thus:The relationship among the parties is an admitted one. The appellant herein/second plaintiff as well as D1-Muthukumarasamy happened to be the children of the first plaintiff-Krishnaveni Ammal.11. Tersely and briefly the case as found detailed and delineated by the plaintiffs would run thus:(i) The first plaintiff's mother namely Rajambal Ammal owned extensive properties. She as per Ex.B9-the settlement deed dated 1.10.1964 donated certain items of properties in favour of her daughter-the first plaintiff-Krishnaveni Ammal and her grand son-D1-Muthukumarasamy for their lives and absolute interest in favour of the children of D1-Muthukumarasamy.(ii) While so the life estate holders the first plaintiff-Krishnaveni Ammal and D1-Muthukumarasamy vide the sale deed-Ex.B1 dated 10.8.1981 alienated a part of the property covered under Ex.B9-the settlement deed in favour of a third party for a sum of Rs.8 000/- (eight thousand).(iii) Subsequently as per Ex.A1 and Ex.A2-the sale deeds dated 17.9.1984 the first plaintiff claimed to have purchased the suit properties and thereafter according to her she settled those two properties vide the alleged settlement deeds Ex.A3 and A7 in favour of the second plaintiff.(iv) The first plaintiff and the second plaintiff joined together and filed the suit as though D1-Muthukumarasamy during the year 1993 trespassed into the suit property and started enjoying it.12. Per contra D1 filed the written statement challenging and impugning the averments/allegations in the plaint by putting forth his version the warp and woof of the same would run thus:The suit properties were purchased as per Exs.A1 and A2- the sale deeds dated 17.9.1984 from out of the sale proceeds obtained under Ex.B1-the sale deed dated 10.8.1981 and also from out of the money raised by D1 by selling his wife's jewels and also raising loans and creating mortgages and that the suit properties are meant only for his children as Rajambal Ammal intended that only D1's children should be the absolute owners.13. Both sides even before me argued as though Exs.A3 and A7 are settlement deeds.14. I raised the query as to how in view of the recitals found embodied in those so called settlement deeds they cannot be dubbed or labelled as Wills. I could not get any convincing answer from both sides. Certain excerpts from Ex.A3 and Ex.A7 would run thus:Certain excerpts from Ex.A3 would run thus:“TAMIL”Certain excerpts from Ex.A7 would run thus:“TAMIL”15. The above excerpts would unambiguously and unequivocally highlight and spotlight the fact that those two alleged settlement deeds are in strico senso only Wills and there can be no second thought over it.16. At this juncture I would like to buttress and fortify my view by referring to the following judgments of the Honourable Apex Court as well as this Court:(i) 2005 (3) LW 736 (Kokilambal and others vs. N.Raman) and an excerpt para Nos.11 to 14 of it would run thus:11. Their Lordships also relied upon Halsbury's Law of England 4th Edn. Vol.50 Para 589 at page 395 which reads as under:It is necessary to construe the Will to find out the intention of the testator. With regard to construction of Wills the law is well settled that intention has to be ascertained from the words used keeping in view the surrounding circumstances the position of the testator his family relationship and that the Will must be read as a whole.12. Our attention was also invited to a decision of this Court in the case of Namburi Basava Subrahmanyam vs. Alapati Hymavathi & Ors. reported in (1996) 9 SCC 388. In this case also the question was whether the document is a will or settlement. Their Lordships held that the nomenclature of the document is not conclusive one. It was observed as follows:The nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executant and acknowledgment thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby is created in favour of the recipient under the document or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole.The document in this case described as 'settlement deed' was to take effect on the date on which it was executed. The settlor created rights thereunder intended to take effect from that date the extent of the lands mentioned in the Schedule with the boundaries mentioned there under. A combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment alienation etc. In other words she had created in herself a life interest in the property in praesenti and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlor's demise. Thus the document in question could be construed rightly as a settlement deed but not as a Will. The settlor having divested herself of the right and title there under had thereafter no right to bequeath the same property in favour of her first daughter.13. In this background we have to examine the settlement deeds created by Kokilambal in favour of the deceased Varadan. The recitals of the settlement deeds i.e.A-1 and A-2 as reproduced above clearly says that since Kokilambal had no son and her husband Manicka Mudaliyar during his life time has bestowed his love and affection on Varadan the son of his elder sister and therefore out of love and affection she has settled that the income derived from the properties i.e.Door No.43 Kakkaran Basin Road shall be enjoyed by herself and Varadan till her life time and after her demise it shall be enjoyed by Varadan absolutely. She further authorised him to collect the rental income of the aforesaid house and pay the corporation and land tax repairs etc. and the remainder rental amount shall be enjoyed by herself and Varadan in moiety. The appellant No.1 further settled that she would not alienate the property but both of them reserve the right to alienate the property jointly. Therefore this settlement in no uncertain terms lays down that the properties in question will vest absolutely after the death of the appellant No.1 and during their life time both will enjoy the usufructs but Varadan would collect the rental income of the aforesaid property. It is further mentioned that both will have the right to alienate the property in question jointly. These conditions are very clear. Varadan would have acquired the absolute right over the property after the death of Kokilambal. Even during their life time if the property was to be alienated then the same would be alienated by them jointly meaning thereby that the appellant No.1 continued to hold the property during her life time and both of them were permitted to enjoy the usufructs of that property. These settlement deeds in our opinion clearly make out that Varadan was not made absolute owner of the property during the life time of the settlor Kokilambal.14. Learned counsel for the respondent has tried to interpret this document that since the appellant No.1 had already divested her right to alienate the property that should be enough to show that the entire property stood vested in favour of Varadan. Learned counsel for the respondent tried to seek support from a decision in the case of Turlapaty Rajeswara Rao & Anr. vs. Kamarajugadda Rangamma & Ors. reported in (1949) 1 MLJ 480 (Vol.96). In that case also it was observed that the wife got the life estate in the properties and the nephews got the vested interest in the same although they are postponed till her death. In this case also it was held that the fundamental rule of construction of a Will is that in the intention of the testator should be gathered from a reading of the Will as a whole. Learned counsel for the respondent also invited our attention to a decision in the case of P.Ram Mohan vs. Lalitha Raghuraman & Ors. reported in AIR 1976 Madras 333 = 89 L.W.175. In that case on the facts their Lordships came to the conclusion that where a settlor by a deed of settlement created a life interest in favour of himself his wife his foster son it was held that the two sons of the settlor acquired a vested interest in the property on the date of execution of the deed. Therefore this depended on the construction of the settlement deed. But in the present case we have quoted above the recitals in the settlement deeds i.e. A-1 and A-2 and have also interpreted the same that the settlor Kokilambal had not completely divested her right in favour of the deceased Varadan but it was a contingent one that it would vest after her death. Therefore the intention of the settlor was very clear that the settlement was to come into effect after the death of settlor Kokilambal.(ii) The decision of this Court reported in 2002 (4) CTC 406 (Rajammal vs. Pappayee Ammal). An excerpt from it would run thus:32. From the above said decisions we can formulate the following broad formula to be applied to find out the nature of the document:-(1) The intention of the executor or executrix has to be found out by reading the entire recitals in the document and the pharaseology used therein.(2) The nomenclature (settlement or will) given in the document is not a deciding factor.(3) The registration of the document and the quantum of stamp paper used also have to be taken into consideration.(4) The recitals regarding the right to revoke or restriction to revoke the document is not a deciding factor with reference to the character of the document.(5) Though actual disposition can be postponed till the lifetime of the settlor or though prima facie it appears that disposition consummates after his death if there is a present disposition and vesting of right in praesenti the document has to be construed as a settlement and not as testamentary.(6) If any restriction is imposed on the beneficiaries to encumber or alienate the properties during the lifetime of the executor then the said document is only a testamentary and not a settlement.(7) If the executant is entitled to be in possession of the property and enjoy the benefits during his life time with the power to encumber the document has to be construed only as a Will.(8) If the executant imposes self-restriction and with reference to sale and encumbrance though he is in possession of the property after execution of the said document the document has to be construed only as a settlement and not as a Will.(emphasis supplied)(iii) The decision of this Court reported in 2003 (3) MLJ 229 (Arthur Mary Ammal vs. Aruldoss Pillai (Deceased) and others; and(iv) The decision of this Court reported in 2004 (4) MLJ 619 (Rasu Pillai vs. Muthukumaran and another).17. The aforesaid precedent of the Honourable Apex Court would unambiguously and unequivocally demonstrate that the Hon'ble Apex Court had gone to the extent of holding that despite the settlee having been given with the right to receive the rent during the life time of the settlee the settlement was only a Will and not a gift.18. A mere running of the eye over the aforesaid precedents would enable me to adjudge and assess Ex.A3 and A7 only as Wills and not as Settlement deeds. There is no molecular or miniscule shard or shred pint or jot of version that the second plaintiff could locate in those Ex.A3 and A7 that as on the date of execution of those deeds the property in those deeds got transferred absolutely in her favour. The parties and Courts below in blithe disregard for the ingredients of Section 123 of the Transfer of Property Act dealt with Ex.A3 and A7. Surprisingly and shockingly the evidence both pro and contra relating to those documents variedly and wastefully and such efforts turned out to be an ill wind that blew no one any good. When such is the factual scenario a fortiori the law would label those two documents only as Wills and not as settlement deeds.19. The plaint in fact proceeded on the footing as though those Ex.A3 and A7 were two settlement deeds indicating donations inter vivos even though they were not so.20. Au fait with law and au courant with facts both the Courts below also have not taken note of that fact. Adding fuel to the fire during the pendency of these proceedings the first plaintiff-the testator under Ex.A3 and Ex.A7 died. Now the second plaintiff could claim right over the suit properly only under those two Wills which are bound to be proved in accordance with Sections 68 of the Indian Evidence Act and if necessary as per Section 69 of the Act but so far that exercise has not been undertaken. The 2nd plaintiff ex delicto justitiae could claim right as beneficiary under Ex.A3 and A7 provided she as propounder of the Wills Ex.A3 and A7 proves them as per law.21. At this juncture I would like to recollect the following maxims:'(i) Ignorantia juris quod quisque scire tenetur neminem excusat' - Ignorance of the law which everyone is bound to know excuses no one.(ii) 'Ignorantia legis nemimem excusat.' - Ignorance of law excuses no one.(iii) 'Ignorantia juris non excusant' - Ignorance of the law does not excuse.(iv) 'Ignorantia juris haud excusat' - a mistake of fact may involve a misapprehension of legal rights.22. In fact the pertinent maxim in my opinion which normally should be adopted by the Courts is the third maxim cited supra .23. Accordingly this Court should holistically view the matter. The Court cannot throw the baby along with the bathe water. Owing to the misconception relating to the nature of the documents Ex.A3 and A7 appropriate evidence was not adduced on the side of the plaintiffs and the Courts also have not guided the parties properly in this regard.24. My mind is reminiscent and redolent of the maxim 'Ubi jus incertum ibi jus nullum' - Where the right is uncertain there is no right.25. Both the Courts below failed to adhere to the well known adage that every trial is a voyage in which quest for truth is the goal as found highlighted in the following precedents of the Hon'ble Apex Court:(i) 2012(1) MWN (Civil) 840 (S.C.) [Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (dead) through L.Rs.] Certain excerpts from it would run thus:36. In Ritesh Tiwari and another vs. State of Uttar Pradesh and others 2010(10) SCC 677 this court reproduced often quoted quotation which reads as under:Every trial is voyage of discovery in which truth is the quest.37. This court observed that the power is to be exercised with an object to sub-serve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth.38. Lord Denning in the case of Jones v. National Coal Board 1957 (2) QB 55 has observed that:In the system of trial that we evolved in this country the Judge sits to hear and determine the issues raised by the parties not to conduct an investigation or examination on behalf of the society at large as happens we believe in some foreign countries.39. Certainly the above is not true of the Indian Judicial System. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty if in the guise of remaining neutral he opts to remain passive to the proceedings before him. He has to always keep in mind that every trial is a voyage of discovery in which truth is the quest. In order to bring on record the relevant fact he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.51. In the administration of justice judges and lawyers play equal roles. Like Judges lawyers also must ensure that truth triumphs in the administration of justice.52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.(ii) 2010(10) SCC 677 [Ritesh Tiwari and another vs. State of Uttar Pradesh and others]. Certain excerpts from it would run thus:37. Section 165 of the Evidence Act 1872 empowers the court to ask questions relevant irrelevant related or unrelated to the case to the party to ascertain the true facts. The party may not answer the question but it is not permitted to tell the court that the question put to him is irrelevant or the facts the court wants to ascertain are not in issue. Exercise of such a power is necessary for the reason that the judgment of the court is to be based on relevant facts which have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus in order to discover or obtain proper proof of the relevant facts the court can ask the question to the parties concerned at any time and in any form. Every trial is voyage of discovery in which truth is the quest. Therefore power is to be exercised with an object to subserve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts the court can put questions to the parties except those which fall within exceptions contained in the said provision itself (vide Jamatraj Kewalji Govani v. State of Maharashtra and Zahira Habibulla H.Sheikh vs. State of Gujarat].26. As such I am of the considered view that an opportunity has to be given to the appellant/second plaintiff in this regard and it is for the defendants to raise whatever pleas which they might deem fit and the parties also shall be given further opportunity to put forth additional pleadings.27. The first appellate Court's approach in applying the facts by ushering in Section 4(3) of the Benami Transactions (Prohibition) Act 1988 is far from satisfactory and that was why my learned predecessor formulated the aforesaid substantial question of law.28. The Courts should bare in mind the principle 'burden of proof' as found embodied in the following maxims:(i) Affirmatis est probare - He who affirms must prove.(ii) Affirmanti non neganti incumbit probatio - The burden of proof lies upon him who affirms not upon one who denies.29. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.30. Here Ex.A1 and Ex.A2 the sale deeds stand in the name of the first plaintiff. However it is D1 who would venture to point out that the plaintiff was only a name lender and in fact out of love and affection alone for her D1 purchased the properties in her name. In such a case the initial burden is only on D1 and having that in mind the evidence has to be analysed and even if any additional evidence is sought to be adduced on the side of the defendants (now then D1 died and D1's L.Rs on record) it is open for them to adduce such additional evidence and it is for the second plaintiff to rebut it in the way known to law. The distinction which should be borne in mind would be to the effect that it is one thing to contend and prove that the suit property is nothing but a replica of the property sold under Ex.B1 and it is entirely different to contend and prove that D1 purchased the suit property in the name of the first plaintiff from out of various D1's financial source. This deep difference is essential while applying the provisions of the Benami Transactions (Prohibition) Act31. I would also bring it to the knowledge of the Courts below as well as the parties the decision of the Honourable Apex Court reported in (1995) 2 Supreme Court Cases 630 - R.RAJAGOPAL REDDY(DEAD) BY LRs. AND OTHERS VS. PADMINI CHANDRASEKHARAN(DEAD) BY Lrs wherein it was held that Section 4(1) of the Act is not retrospective but it is retroactive in operation.32. A mere reading of the above precedent would highlight and stress that the Benami Transactions (Prohibition) Act 1988 even though not retrospective nonetheless it is retroactive and that is applicable even to transactions which emerged anterior to the coming into force of the said Act. Keeping the principle as found enshrined in the decision supra the facts should have been analysed by the Courts below and after remand also it is for the Court concerned to apply the principles correctly and appropriately.33. On balance the substantial questions of law are answered as under:Substantial question of law No.(i) is decided to the effect that the parties as well as the Courts below were not justified in proceeding on the footing that Exs.A3 and A7 were the settlement deeds even though the recitals would speak that they were Wills executed by the first plaintiff in favour of the second plaintiff.Substantial Question of Law No.(ii) is decided to the effect that the provisions of the Benami Transactions (Prohibition) Act 1988 have not been properly applied and findings given by the lower fora.Substantial Question of Law No.(iii) is decided to the effect that the first appellate Court was not justified in holding that the suit properties should be held by the first plaintiff and D1 as trustees for the children of D1. In this regard further evidence has to be analysed as observed supra.34. In this view of the matter I am of the considered view that the judgments of both the Courts below should be set aside and the matter has to be remitted back to the trial Court so as to enable both sides to file additional pleadings and whereupon appropriate additional issue shall be framed by the Court and the parties shall be given due opportunity to adduce additional evidence and thereafter the Court shall decide the matter strictly in accordance with law. Accordingly it is ordered.35. The parties shall appear before the trial Court on 10.6.2013 and thereafter inasmuch as this is an old matter the trial Court shall see that the matter is disposed of within three months.36. The second appeal is disposed of accordingly. No costs.