MANGATHAI AMMAL (DIED) THROUGH LRS ANDversusRAJESWARI & OTHERS

                           [2019] 7 S.C.R. 619                               619


MANGATHAI AMMAL (DIED) THROUGH LRS AND OTHERS                                A
                                    v.
                      RAJESWARI & OTHERS
                    (Civil Appeal No. 4805 of 2019)
                             MAY 09, 2019                                    B
        [L. NAGESWARA RAO AND M. R. SHAH, JJ.]
      Benami transactions: Transactions, whether benami or not –
Determination of – Held: Payment of part sale consideration cannot
be the sole criteria to hold the sale/transaction as benami – Intention
of the person who contributed the purchase money is determinative            C
of the nature of transaction – Intention has to be decided on the
basis of the surrounding circumstances; relationship of the parties;
motives governing their action in bringing about the transaction
and their subsequent conduct – On facts, courts below erred in
decreeing the suit for partition of the properties by original plaintiffs-
daughter-in-law and son-in-law, claiming 3/4 th share in the suit            D
properties since the father-in-law had purchased the suit properties
in the name of his wife-defendant no.1 by selling the ancestral
properties – Courts below erred in holding that the transactions/
sale deeds were benami transactions – It erred in shifting the burden
on the defendants to prove that the sale transactions were not benami        E
transactions – Merely because of payment of part sale consideration
and stamp duty at the time of the execution of the sale deed by the
father-in-law, it cannot be said that the sale deed in favour of
defendant no.1 was benami transaction – Furthermore, from the
facts and circumstances, it cannot be said that the suit properties
were purchased in the name of defendant no.1 by the husband from             F
the funds received by selling of the ancestral properties – Thus, the
order passed by High Court and trial court holding that the plaintiffs
have 3/4th share in the suit properties (except Item Nos. 1 and 3 of
the suit properties) set aside – Benami Transaction (Prohibition)
Act, 1988.                                                                   G
      Partly allowing the appeal, the Court
       HELD: 1.1 Both, the trial court and the High Court have
erred in shifting the burden on the defendants to prove that the
sale transactions were not benami transactions. In fact when the
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620            SUPREME COURT REPORTS                       [2019] 7 S.C.R.


A     plaintiffs’ claim, though not specifically pleaded in the plaint, that
      the Sale Deeds in respect of suit properties, which are in the
      name of defendant no.1, were benami transactions, the plaintiffs
      have failed to prove, by adducing cogent evidence, the intention
      of the NM-father to purchase the suit properties in the name of
      defendant no.1-his wife. Even the reasoning and the findings
B
      recorded by the trial court confirmed by the High Court while
      holding the Sale Deeds/transactions in favour of defendant no.1
      as benami cannot be said to be germane and or fulfilling the
      circumstances as are carved out by this Court. [Para 8.4, 9]
      [633-F-H; 634-A]
C            1.2 The first reason given by the trial court while holding
      the suit properties as benami transactions is that part sale
      consideration was paid by NM at the time of the purchase of the
      property vide Sale Deed. The payment of part sale consideration
      cannot be the sole criteria to hold the sale/transaction as benami.
D     While considering a particular transaction as benami, the intention
      of the person who contributed the purchase money is
      determinative of the nature of transaction. The intention of the
      person, who contributed the purchase money, has to be decided
      on the basis of the surrounding circumstances; the relationship
      of the parties; the motives governing their action in bringing about
E     the transaction and their subsequent conduct etc. NM, who
      contributed part sale consideration by purchasing property might
      have contributed being the husband and therefore by mere
      contributing the part sale consideration, it cannot be inferred that
      Sale Deed in favour of the defendant no.1-wife was benami
F     transaction and for and at behalf of the joint family. Therefore,
      the trial court as well as the High Court erred in holding the suit
      properties as benami transactions/ancestral properties on the
      basis of the document-Sale deed. [Para 9.1] [634-B-F]
            1.3 Merely because of the stamp duty at the time of the
G     execution of the Sale Deed was purchased by NM, by that itself it
      cannot be said that the Sale Deed in favour of defendant no.1 was
      benami transaction. Except the said two documentary evidences
      no other documentary evidence/transaction/Sale Deed in favour
      of defendant no.1 have been considered by the trial court and
      even by the High Court. [Para 9.2] [634-F-G]
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   MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                         621


       1.4 On considering the Release Deed executed by N in             A
favour of defendant no. 1 on payment of Rs.10,000/-, the inference
drawn by the trial court and the High Court that therefore even
the defendant no.1 also considered the share of the daughter and
considered the suit properties as joint family properties and
therefore plaintiffs have also share in the suit properties is
                                                                        B
concerned, is just a mis-reading and mis-interpretation of the
evidence on record. In her deposition, defendant no.1 explained
the payment of Rs.10,000/- to N, daughter and the Release Deed
executed by her. It is specifically stated by her that though she
had no share in the suit properties, with a view to avoid any further
litigation in future and to be on safer side, Rs.10,000/- is paid and   C
the Release Deed was got executed by N in favour of defendant
no.1. Even in the Release Deed, it is so specifically stated.
Therefore, merely because to avoid any further litigation in future
and though N had no share in the suit properties, Rs.10,000/-
was paid and the Release Deed was got executed in favour of
                                                                        D
defendant no.1, by that itself, it cannot be said that defendant
no.1 treated the suit properties as ancestral properties and/or
Joint Family Properties. [Para 9.3] [634-H; 635-A-D]
      1.5 Even considering the Will executed by defendant no.1
and the subsequent revocation of the Will is suggestive of the
fact that defendant no.1 all throughout treated the suit property       E
as her self-acquired property which according to her were
purchased from the Stridhana and selling of the jewellery.
[Para 9.4] [635-D-E]
      1.6 In the plaint the plaintiffs came out with the case that
the suit properties purchased in the name of defendant no.1 by          F
NM from the funds raised by selling the ancestral properties
received by him. It was never the case on behalf of the plaintiffs
that the suit properties were purchased by NM in the name of
defendant no.1 out of the income received from the ancestral
properties. However, considering the date of transactions with          G
respect to the suit properties and the ancestral properties sold
by NM, it can be seen that all the suit properties purchased in
the name of defendant no.1 were much prior to the sale of the
ancestral properties by NM. The ancestral property was sold by
the NM on 11.11.1951. However, the Sale Deeds in favour of
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A     defendant no.1 were much prior to the sale of the property.
      Therefore, also it cannot be said that the suit properties were
      purchased in the name of defendant no.1 by NM from the funds
      received by selling of the ancestral properties. It can be said that
      NM might have purchased the properties in the name of defendant
      no.1 in order to provide his wife with a secured life in the event
B
      of his death. It was the specific case on behalf of the defendant
      no.1 that the suit properties were purchased by her from the
      Stridhana and on selling of the jewellery. [Para 10, 11] [635-E-H;
      636-A-B]
            1.7 The benami transaction came to be amended in the year
C     2016. As per Section 3 of the Benami Transaction (Prohibition)
      Act 1988, there was a presumption that the transaction made in
      the name of the wife and children is for their benefit. By Benami
      Amendment Act, 2016, Section 3 (2) of the Benami Transaction
      Act, 1988 the statutory presumption, which was rebuttable, has
D     been omitted. The submission that in view of omission of Section
      3(2) of the Benami Transaction Act, the plea of statutory
      presumption that the purchase made in the name of wife or
      children is for their benefit would not be available, cannot be
      accepted. The Benami Transaction (Prohibition) Act would not
      be applicable retrospectively. Even otherwise, the plaintiff has
E     miserably failed to discharge his onus to prove that the Sale Deeds
      executed in favour of defendant no.1 were benami transactions
      and the same properties were purchased in the name of defendant
      no.1 by NM from the amount received by him from the sale of
      other ancestral properties. [Para 12] [636-C-F]
F           1.8 Once it is held that the Sale Deeds in favour of defendant
      no.1 were not benami transactions, in that case, suit properties,
      except property nos. 1 and 3, which were purchased in her name
      and the same can be said to be her self-acquired properties and
      therefore cannot be said to be Joint Family Properties, the
G     plaintiffs cannot be said to have any share in the suit properties
      (except property nos. 1 and 3). The impugned judgment and order
      passed by the High Court as well as the trial court holding that
      the plaintiffs have 3/4th share in the suit properties (except Item
      Nos. 1 and 3 of the suit properties) is quashed and set aside.
      [Para 12.1, 13] [636-F-G; 637-A-B]
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    MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                               623


      P. Leelavathi v. V. Shankarnarayana Rao (2019) 6                         A
      SCALE 112 ; Jaydayal Poddar v. Bibi Hazra (Mst.)
      (1974) 1 SCC 3 : [1974] 1 SCR 70 ; Thakur Bhim Singh
      v. Thakur Kan Singh (1980) 3 SCC 72 – relied on.
      Om Prakash Sharma v. Rajendra Prasad Shewda
      (2015) 15 SCC 556 : [2015] 10 SCR 574 ; Binapani                         B
      Paul v. Pratima Ghosh (2007) 6 SCC 100 : [2007]
      5 SCR 946 ; Valliammal v. Subramaniam (2004) 7 SCC
      233 : [2004] 3 Suppl. SCR 966 – referred to.
                         Case Law Reference
[2015] 10 SCR 574                  referred to               Para 5.6          C

[2007] 5 SCR 946                   referred to               Para 5.7
[2004] 3 Suppl. SCR 966            referred to               Para 5.7
(2019) 6 SCALE 112                 relied on.                Para 8.4
                                                                               D
[1974] 1 SCR 70                    relied on.                Para 8.4
(1980) 3 SCC 72                    relied on.                Para 8.4
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4805
of 2019.
      From the Judgment and Order dated 05.01.2016 of the High                 E
Court of Judicature at Madras in A.S. No. 785 of 1992.
      V. Prabhakar, Ms. Jyoti Parasher, N. J. Ramchandar, S. Rajappa,
Advs. for the Appellants.
      G. Balaji, Adv. for the Respondents.                                     F
      The Judgment of the Court was delivered by
      M. R. SHAH, J. 1. Leave granted.
       2. Feeling aggrieved and dissatisfied with the impugned Judgment
and Order passed by the High Court of Judicature at Madras dated
05.01.2016 passed in AS No.785 of 1992 dismissing the same and                 G
affirming the Judgment and Decree dated 05.08.1992 passed by the
learned Subordinate Judge, Arni in O.S. No.124 of 1990 decreeing the
suit for partition by original plaintiff, the original defendant nos. 1 to 3
have preferred the present appeal.
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624             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A           3. The facts leading to the present appeal in nutshell are as
      under :
             That, one Rajeswari and Others-original plaintiffs instituted a suit
      bearing O.S. No.124 of 1990 for partition of the suit properties and
      separate possession. It was the case on behalf of the plaintiffs that the
B     first defendant is the wife of one Narayanasamy Mudaliar. That, the
      said Narayanasamy Mudaliar and original defendant no.1 had one son
      and three daughters namely Elumalai (son), Ranganayaki (daughter),
      Nagabushanam (daughter) and Navaneetham (daughter). That, the son
      Elumalai and daughter Ranganayaki had died. The first plaintiff is the
      wife of Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the
C     husband and children of the deceased Ranganayaki. That, Elumalai and
      the first plaintiff did not have issue. According to the original plaintiffs,
      Narayanasamy Mudaliar sold the ancestral properties and purchased
      the suit property in the name of first defendant - Mangathai Ammal
      (wife of Narayanasamy Mudaliar). Therefore, it was the case on behalf
D     of the plaintiffs that Narayanasamy Mudaliar and his son Elumalai are
      entitled to half share of the ancestral properties. That, it was the case on
      behalf of the plaintiffs that the same Narayanasamy Mudaliar had died
      twenty years back to the filing of the suit. His share in the properties
      was inherited by Elumalai, defendant nos. 1 and 2 viz Nagabushanam
      Ammal and Ranganayaki Ammal. That, the Ranganayaki died about six
E     years before filing of suit, therefore, her legal representatives viz original
      plaintiff nos.2 to 8 inherited her share in the properties. That, the
      Nagabushanam executed the Release Deed dated 24.04.1990 in favour
      of the first defendant. According to the plaintiffs, the first plaintiff is
      entitled to 5/8th share, plaintiff nos. 2 to 8 are entitled to 1/8th share and
F     the defendants are entitled to 1/4th share in the suit properties. According
      to the plaintiffs, since the defendant tried to claim the suit properties, the
      plaintiffs filed the present suit for partition.
             3.1 The suit was resisted by the defendants. As per the case of
      the first defendant, except item nos. 1 and 3 of the suit properties, the
G     other properties are self-acquired properties of the first defendant.
      According to the first defendant, the first item of the suit property was
      purchased out of the money provided by her in her name. According to
      the first defendant, the suit properties are not the ancestral properties of
      Narayanasamy Mudaliar. It was denied that the suit properties were
      purchased by selling the ancestral properties. It was the case on behalf
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    MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                                  625
                 [M. R. SHAH, J.]

of the defendant no.1 that except properties in item nos. 1 and 3 of              A
Schedule II, the properties were purchased by the defendant no.1 out of
the stridhana she received from her parents’ house and by selling the
gold jewellery. It was also the case on behalf of defendant no.1 that
after purchasing the property from Thangavel Gounder and others; she
constructed a house and is in possession and enjoyment of the said
                                                                                  B
property. According to the defendant no.1, the deceased Narayanasamy
Mudaliar was entitled to 47 cents in Survey No. 218/1 and 8 cents in
Survey No. 218/3 and the deceased Ranganayaki Ammal is entitled to
1/5th share in the suit properties. It was also the case on behalf of the
first defendant that, similarly, the first plaintiff’s husband is also entitled
to 1/5th share, in which, first defendant and first plaintiff are entitled to     C
half share in the suit properties. According to the first defendant, the
first defendant’s daughter Nagabhushanam executed a Release Deed
in respect of her own share. It was also the case on behalf of the first
defendant that she never acted as a manager of the joint family. According
to her, she executed a Will dated 11.02.1987 in favour of plaintiff nos. 1
                                                                                  D
and 2 and Nagabhushanam Ammal. However, since the beneficiaries of
the Will did not take care of the first defendant, she revoked the Will on
11.06.1990.
       3.2 Defendant nos. 2 and 3 supported defendant no.1. According
to defendant nos. 2 and 3, defendant no.1 mortgaged the property with
defendant no. 3 for a valuable consideration, which was also known to             E
the plaintiffs. Defendant nos. 2 and 3 also adopted the written statement
filed by defendant no.1.
       3.3 That the learned Trial Court framed the following issues:
       “1) Whether the suit schedule properties are ancestral properties          F
           of husband of the 1st plaintiff namely Elumalai and the
           deceased Narayansamy?
       2) Whether it is true that the 1st defendant had managed the suit
          schedule properties being the Manager of the Family?
       3) Whether it is true that the Suit Schedule properties are jointly        G
          enjoyed by all the family members as Joint Family Property?
       4)   Whether the plaintiffs are entitled to claim partition in view
            of the Release Deed dated 24.04.90 executed by
            Nagabooshanam Ammal?
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A           5) Whether it is true that the 1st defendant had executed a Will
               on 11.2.87 to and in favour of plaintiffs in respect of suit
               schedule property and revoked the said Will on 11.6.90?
            6) Whether it is true that the plaintiffs are in joint possession of
               the suit schedule properties?
B           7) Whether the plaintiffs are entitled to get 3/4th share over the
               suit schedule properties?
            8) Whether the present suit is not valued properly?
            9) To what relief the plaintiffs are entitled?
C            3.4 Before the Trial Court, on the side of the plaintiffs, four
      witnesses were examined and three documents Exh. A1 to A3 were
      marked. On the side of the defendants, two witnesses were examined
      and 19 documents Exh. B1 to B19 were marked. That, the learned Trial
      Court, after taking into consideration the oral and documentary evidences
D     of both the sides, passed a preliminary decree finding that the plaintiffs
      are entitled to 3/4th share in the suit properties. Feeling aggrieved and
      dissatisfied with the Judgment and Decree passed by the Trial Court,
      the original defendant nos. 1 to 3 preferred appeal before the High Court.
      That, by impugned Judgment and Order, the High Court has dismissed
      the said appeal and has confirmed the Judgment and Decree passed by
E     the Trial Court. Feeling aggrieved and dissatisfied with the impugned
      Judgment and Order passed by the High Court dismissing the appeal
      and confirming the Judgment and Decree passed by the learned Trial
      Court, original defendant nos.1 to 3 have preferred the present appeal.
            4. Shri V. Prabhakar, learned Counsel has appeared on behalf of
F     the appellants-original defendants and Shri G. Balaji, learned Counsel
      has appeared on behalf of the respondents-original plaintiffs.
            5. Shri V. Prabhakar, learned Counsel appearing on behalf of the
      original defendant nos.1 to 3 has vehemently submitted that in the facts
      and circumstances of the case, both, the learned Trial Court as well as
G     the High Court have committed a grave error in decreeing the suit and
      holding that the original plaintiffs have 3/4th share in the suit properties.
             5.1 It is further submitted by Shri V. Prabhakar, learned Counsel
      appearing on behalf of the appellants-original defendant nos.1 to 3 that
      the suit properties were purchased by defendant no.1 out of the stridhana
H     she received from her parents and by selling the gold jewellery. It is
    MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                                627
                 [M. R. SHAH, J.]

submitted that, admittedly, the suit properties were purchased in the name      A
of original defendant no.1 and was in possession of defendant no.1. It is
submitted therefore, the finding that the properties were purchased by
Narayanasamy Mudaliar is erroneous.
        5.2 It is further submitted by Shri V. Prabhakar, learned Counsel
appearing on behalf of the appellants-original defendant nos.1 to 3 that if     B
it was the case on behalf of the original plaintiffs that the properties
purchased in the name of defendant no.1 were the benami transactions,
in that case, the onus is/was upon the plaintiffs to prove by leading cogent
evidence that the transactions were benami transactions. It is submitted
that in the present case, the plaintiffs have failed to discharge the onus
to prove that the transactions were benami transactions. It is submitted        C
that, both, the Trial Court as well as the High Court had erroneously
shifted the burden upon the defendants to prove that the transactions/
Sale Deeds in favour of defendant no.1 were not benami transactions. It
is submitted that the aforesaid is contrary to the settled proposition of
law laid down by this Court.                                                    D
       5.3 It is further submitted by Shri V. Prabhakar, learned Counsel
appearing on behalf of the appellants-original defendant nos.1 to 3 that
in the present case, solely on considering two documents, namely, Exh.
B3, Sale Deed in respect of one of the properties and Exh. B4, the Sale
Deed with respect of two properties, the Courts below have considered           E
the entire suit properties as ancestral properties and/or the same properties
purchased from the funds raised by selling the ancestral properties.
      5.4 It is further submitted by Shri V. Prabhakar, learned Counsel
appearing on behalf of the appellants-original defendant nos.1 to 3 that
merely because some consideration or part consideration was paid by             F
the husband at the time of purchase of property at Exh. B3-Sale Deed
and/or merely purchasing the stamp papers while purchasing the property
at Exh. B4-Sale Deed, it cannot be said that the same properties as such
were purchased from the funds raised by selling the ancestral properties
and/or the same were purchased for and on behalf of joint family.
                                                                                G
       5.5 It is further submitted by Shri V. Prabhakar, learned Counsel
appearing on behalf of the appellants-original defendant nos.1 to 3 that
both the Courts below have materially erred in misinterpreting the Release
Deed at Exh. A1. It is submitted that both the Courts below have
materially erred in holding the suit properties as joint family properties of
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628             SUPREME COURT REPORTS                            [2019] 7 S.C.R.


A     Narayanasamy Mudaliar on the ground that execution of Release Deed
      at Exh. A1 by Nagabhushanam on payment of Rs.10,000/- to
      Nagabhushanam and on such payment Nagabhushanam released her
      share in the property, was good to hold that the properties are the joint
      family properties of Narayanasamy Mudaliar.
B            5.6 It is further submitted by Shri V. Prabhakar, learned Counsel
      appearing on behalf of the appellants-original defendant nos.1 to 3 that
      even considering the documentary evidences on record, more particularly,
      Exh. B3 to B7, it can be seen that the suit properties were purchased in
      the name of defendant no.1 were purchased much prior to the sale of
      some of the ancestral properties of Narayanasamy Mudaliar. It is
C     submitted that, therefore, the case on behalf of the plaintiffs that the suit
      properties were purchased in the name of defendant no.1 out of the
      funds raised on selling the ancestral properties of Narayanasamy
      Mudaliar, cannot be accepted. Relying upon paragraph 10 of the decision
      of this Court in the case of Om Prakash Sharma v. Rajendra Prasad
D     Shewda, (2015) 15 SCC 556, it is submitted by Shri V. Prabhakar, learned
      Counsel appearing on behalf of the appellants that as the transactions/
      Sale Deeds in favour of defendant no.1 were prior to the enactment of
      the Hindu Succession Act and the amendments made thereto from time
      to time, even it can be said that the intention of the Narayanasamy
      Mudaliar to purchase the properties in the name of defendant no.1-his
E     wife was in order to provide the wife with a secured life in the event of
      his death.
              5.7 Shri V. Prabhakar, learned Counsel appearing on behalf of the
      appellants-original defendant nos.1 to 3 submitted that even otherwise,
      the plaintiffs have failed to prove by leading cogent evidence that the
F     transactions of sale in favour of defendant no.1 were benami transactions.
      It is submitted by Shri V. Prabhakar that even in the plaint also there
      were no specific pleadings that the sale transactions of the suit properties
      in favour of defendant no.1 were benami transactions. It is submitted
      that even the learned Trial Court also did not frame any specific issue
G     with respect to benami transactions. It is submitted that even otherwise
      on merits also and on considering the recent decision of this Court in the
      case of P. Leelavathi v. V. Shankarnarayana Rao (2019) 6 SCALE
      112, in which after considering the earlier decisions of this Court in the
      case of Jaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC 3; Thakur
      Bhim Singh v. Thakur Kan Singh (1980) 3 SCC 72; Binapani Paul v.
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    MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                                 629
                 [M. R. SHAH, J.]

Pratima Ghosh (2007) 6 SCC 100 and Valliammal v. Subramaniam                     A
(2004) 7 SCC 233, it cannot be said that the Sale Deeds executed in
favour of defendant no.1 were benami transactions.
        5.8 Making above submissions and relying upon above decisions
it is prayed to allow the present appeal.
     6. Present appeal is vehemently opposed by Shri G. Balaji, learned          B
Counsel appearing on behalf of the respondents-original plaintiffs.
       6.1 Shri G. Balaji, learned Counsel appearing on behalf of the
respondents-original plaintiffs has vehemently submitted that on
appreciation of entire evidence on record, both, learned Trial Court as
well as the High Court, have rightly held that the transactions of sale in       C
favour of defendant no.1 were benami transactions as the said properties
were purchased by Narayanasamy Mudaliar in the name of defendant
no.1 out of the funds received from selling the ancestral properties. It is
submitted that on considering the documentary evidences Exh. B3, B4
and even Exh. A1, the High Court has rightly observed and held that the          D
transactions/Sale Deeds in favour of defendant no.1 were benami
transactions and therefore the plaintiffs are entitled to 3/4th share in the
suit properties which were purchased in the name of defendant no.1 but
purchased out of the funds received from selling the ancestral properties
by Narayanasamy Mudaliar.
                                                                                 E
       6.2 It is further submitted by Shri G. Balaji, learned Counsel
appearing on behalf of the respondents-original plaintiffs that in the present
case, all the conditions to prove the transactions as benami transactions
as laid down by this Court in the case of P. Leelavathi (Supra) have
been satisfied.
                                                                                 F
        6.3 It is vehemently submitted by Shri G. Balaji, learned Counsel
appearing on behalf of the respondents-original plaintiffs that in the present
case, even from the intention and conduct of the parties it is proved that
though the properties were in the name of defendant no.1, they were
purchased and enjoyed as Joint Family Properties. It is submitted that
otherwise the Nagabhushanam would not have released her share in                 G
favour of defendant no.1, if the daughter Nagabhushanam had no share.
It is submitted that execution of the Release Deed by Nagabhushanam
in favour of defendant no.1 suggests that defendant no.1 also considered
the share of the daughter Nagabhushanam by treating the suit properties
as Joint Family Properties.
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630             SUPREME COURT REPORTS                               [2019] 7 S.C.R.


A            6.4 It is further submitted by Shri G. Balaji, learned Counsel
      appearing on behalf of the respondents-original plaintiffs that the Will
      dated 11.02.1987, executed by defendant no.1, also included even the
      properties exclusively belonging to Narayanasamy Mudaliar. It is
      submitted, therefore, the intention can be gathered from Exh. B8 and
      Exh. B9 that the suit properties are Joint Family Properties and therefore
B
      liable for partition and not exclusive properties of defendant no.1.
             6.5 It is further submitted by Shri G. Balaji, learned Counsel
      appearing on behalf of the respondents-original plaintiffs that the suit
      properties were purchased in the name of defendant no.1 during the
      lifetime of Narayanasamy Mudaliar. It is submitted that original defendant
C     no.1 had no independent income. It is submitted that Narayanasamy
      Mudaliar had ancestral properties/agricultural lands which were
      generating income and he purchased all the properties in the name of his
      wife-defendant no.1 from the income generated from the ancestral
      properties and by selling some of the ancestral properties.
D            6.6 It is further submitted by Shri G. Balaji, learned Counsel
      appearing on behalf of the respondents-original plaintiffs that even the
      statutory presumption which was rebuttable under Section 3 (2) of the
      Benami Transaction Act, 1988 has been omitted by Benami Amendment
      Act of 2016. It is submitted that therefore as on date, there is no such
E     statutory presumption that the purchase made in the name of wife or
      children is for their benefit.
              6.7 Making above submissions and relying upon above decisions
      it is prayed to dismiss the present appeal.
             7. Heard the learned Counsel appearing on behalf of the respective
F     parties at length. We have gone through and considered in detail the
      findings recorded by the learned Trial Court as well as the High Court.
      We have also considered in detail the evidences on record both oral as
      well as documentary.
             7.1 At the outset, it is required to be noted that the original plaintiffs
G     instituted the suit before the learned Trial Court for partition of the suit
      properties and claiming 3/4th share with the pleadings that the suit
      properties were ancestral properties and that the Narayanasamy Mudaliar
      has purchased the suit properties in the name of his wife-defendant no.1
      out of the funds derived through selling his share of the property acquired
      through ancestral nucleus to some other person and that the suit properties
H
    MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                                631
                 [M. R. SHAH, J.]

were in absolute possession and enjoyment of the Joint Family Property          A
since the date of purchase. From the pleadings, it appears that it was not
specifically pleaded by the plaintiffs that the Sale Deeds/transactions in
favour of defendant no.1 were benami transactions. It was also not
pleaded that the suit properties were purchased in the name of defendant
no.1 by Narayanasamy Mudaliar from the income derived out of the
                                                                                B
ancestral properties. Even the learned Trial Court did not specifically
frame the issue that whether the transactions/Sale Deeds in favour of
defendant no.1 are benami transactions or not? Despite the above, learned
Trial Court and the High Court have held that the transactions/Sale Deeds
in favour of defendant no.1 were benami transactions. The aforesaid
findings recorded by the Trial Court confirmed by the High Court and            C
the consequent relief of partition granted in favour of the plaintiffs is the
subject matter of the present appeal.
       8. While considering the issue involved in the present appeal viz.
whether the transactions/Sale Deeds in favour of defendant no.1 can be
said to be benami transactions or not, the law on the benami transactions       D
is required to be considered and few decisions of this Court on the
aforesaid are required to be referred to.
       8.1 In the case of Jaydayal Poddar (Supra) it is specifically
observed and held by this Court that the burden of proving that a particular
sale is benami and the apparent purchaser is not the real owner, always         E
rests on the person asserting it to be sold. It is further observed that this
burden has to be strictly discharged by adducing legal evidence of a
definite character which would either directly prove the fact of the benami
transaction or establish circumstances unerringly and reasonably raising
an interference of that fact. In paragraph 6 of the aforesaid decision,
this Court has observed and held as under :                                     F

      “6. “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         G
      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             H
632            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           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
B
            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 tests, uniformly applicable in all situations, can be laid down;
            yet in weighing the probabilities and for gathering the relevant
C           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 title deeds after the
D
            sale and (6) the conduct of the parties concerned in dealing with
            the property after the sale.
            In the case of Thakur Bhim Singh (Supra) this Court in
      paragraph 18 observed and held as under :

E           “18. The principle governing the determination of the question
            whether a transfer is a benami transaction or not may be summed
            up thus: (1) the burden of showing that a transfer is a benami
            transaction lies on the person who asserts that it is such a
            transaction; (2) it is proved that the purchase money came from a
            person other than the person in whose favour the property is
F           transferred, the purchase is prima facie assumed to be for the
            benefit of the person who supplied the purchase money, unless
            there is evidence to the contrary; (3) the true character of the
            transaction is governed by the intention of the person who has
            contributed the purchase money and (4) the question as to what
            his intention was has to be decided on the basis of the surrounding
G
            circumstances, the relationship of the parties, the motives governing
            their action in bringing about the transaction and their subsequent
            conduct, etc.”
            8.2 In the case of P. Leelavathi (Supra) this Court held as
      under :
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    MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                               633
                 [M. R. SHAH, J.]

      “9.2 In Binapani Paul case (Supra), this Court again had an              A
      occasion to consider the nature of benami transactions. After
      considering a catena of decisions of this Court on the point, this
      Court in that judgment observed and held that the source of money
      had never been the sole consideration. It is merely one of the
      relevant considerations but not determinative in character. This
                                                                               B
      Court ultimately concluded after considering its earlier judgment
      in the case of Valliammal v. Subramaniam (2004) 7 SCC 233
      that while considering whether a particular transaction is benami
      in nature, the following six circumstances can be taken as a guide:
      “(1) the source from which the purchase money came;
                                                                               C
      (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;
                                                                               D
      (5) the custody of the title deeds after the sale; and
      (6) the conduct of the parties concerned in dealing with the property
      after the sale. (Jaydayal Poddar v. Bibi Hazra (supra), SCC p.
      7, para6)”
       8.3 After considering the aforesaid decision in the recent decision     E
of this Court in the case of P. Leelavathi (Supra), this Court has again
reiterated that to hold that a particular transaction is benami in nature
the aforesaid six circumstances can be taken as a guide.
       8.4 Applying law laid down by this Court in the aforesaid decisions
to the facts of the case on hand and the reasoning given by the Trial          F
Court confirmed by the High Court, it appears that both, the learned
Trial Court and the High Court have erred in shifting the burden on the
defendants to prove that the sale transactions were not benami
transactions. As held hereinabove in fact when the plaintiffs’ claim, though
not specifically pleaded in the plaint, that the Sale Deeds in respect of
suit properties, which are in the name of defendant no.1, were benami          G
transactions, the plaintiffs have failed to prove, by adducing cogent
evidence, the intention of the Narayanasamy Mudaliar to purchase the
suit properties in the name of defendant no.1 – his wife.

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634             SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A            9. Even the reasoning and the findings recorded by the Trial Court
      confirmed by the High Court while holding the Sale Deeds/transactions
      in favour of defendant no.1 as benami cannot be said to be germane and
      or fulfilling the circumstances as carved out by this Court in the aforesaid
      decisions.
B            9.1 The first reason which is given by the learned Trial Court
      while holding the suit properties as benami transactions is that part sale
      consideration was paid by Narayanasamy Mudaliar at the time of the
      purchase of the property vide Sale Deed Exh. B3. As held by this Court
      in catena of decisions referred to hereinabove, the payment of part sale
      consideration cannot be the sole criteria to hold the sale/transaction as
C     benami. While considering a particular transaction as benami, the intention
      of the person who contributed the purchase money is determinative of
      the nature of transaction. The intention of the person, who contributed
      the purchase money, has to be decided on the basis of the surrounding
      circumstances; the relationship of the parties; the motives governing
D     their action in bringing about the transaction and their subsequent conduct
      etc. It is required to be noted that Narayanasamy Mudaliar, who
      contributed part sale consideration by purchasing property at Exh. B3,
      might have contributed being the husband and therefore by mere
      contributing the part sale consideration, it cannot be inferred that Sale
      Deed in favour of the defendant no.1-wife was benami transaction and
E     for and at behalf of the joint family. Therefore, the Trial Court as well as
      the High Court have committed a grave error in holding the suit properties
      as benami transactions/ancestral properties on the basis of the document
      at Exh. B3.
            9.2 Similarly, merely because of the stamp duty at the time of the
F     execution of the Sale Deed at Exh. B4 was purchased by Narayanasamy
      Mudaliar, by that itself it cannot be said that the Sale Deed at Exh. B4 in
      favour of defendant no.1 was benami transaction. It is required to be
      noted that except the aforesaid two documentary evidences at Exh. B3
      and B4, no other documentary evidence/transaction/Sale Deed in favour
G     of defendant no.1 have been considered by the learned Trial Court and
      even by the High Court.
            9.3 Now, so far as the findings recorded by the Trial Court and
      the High Court on considering the Release Deed at Exh. A1 viz. the
      Release Deed executed by Nagabushanam in favour of defendant no. 1
H     on payment of Rs.10,000/- and therefore inference drawn by the learned
    MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                               635
                 [M. R. SHAH, J.]

Trial Court and the High Court that therefore even the defendant no.1          A
also considered the share of the daughter and considered the suit
properties as joint family properties and therefore plaintiffs have also
share in the suit properties is concerned, the said finding is just a mis-
reading and mis-interpretation of the evidence on record. In her
deposition, defendant no.1 has explained the payment of Rs.10,000/- to
                                                                               B
Nagabushanam, daughter and the Release Deed executed by her. It is
specifically stated by her that though she had no share in the suit
properties, with a view to avoid any further litigation in future and to be
on safer side, Rs.10,000/- is paid and the Release Deed was got executed
by Nagabushanam in favour of defendant no.1. Even in the Release
Deed at Exh. A1, it is so specifically stated. Therefore, merely because       C
to avoid any further litigation in future and though Nagabushanam had
no share in the suit properties, Rs.10,000/- was paid and the Release
Deed was got executed in favour of defendant no.1, by that itself, it
cannot be said that defendant no.1 treated the suit properties as ancestral
properties and/or Joint Family Properties.
                                                                               D
       9.4 Even considering the Will executed by defendant no.1 dated
11.02.1987 and the subsequent revocation of the Will is suggestive of
the fact that defendant no.1 all throughout treated the suit property as
her self-acquired property which according to her were purchased from
the Stridhana and selling of the jewellery.
                                                                               E
       10. It is required to be noted that in the plaint the plaintiffs came
out with the case that the suit properties purchased in the name of
defendant no.1 by Narayanasamy Mudaliar from the funds raised by
selling the ancestral properties received by him. It was never the case
on behalf of the plaintiffs that the suit properties were purchased by
Narayanasamy Mudaliar in the name of defendant no.1 out of the income          F
received from the ancestral properties. However, considering the date
of transactions with respect to the suit properties and the ancestral
properties sold by Narayanasamy Mudaliar, it can be seen that all the
suit properties purchased in the name of defendant no.1 were much
prior to the sale of the ancestral properties by Narayanasamy Mudaliar.        G
The ancestral property was sold by the Narayanasamy Mudaliar (Exh.
A3) on 11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6
and B7 which are in favour of defendant no.1 were much prior to the
sale of the property at Exh. A3. Therefore, also it cannot be said that the
suit properties were purchased in the name of defendant no.1 by
                                                                               H
636            SUPREME COURT REPORTS                          [2019] 7 S.C.R.


A     Narayanasamy Mudaliar from the funds received by selling of the
      ancestral properties.
             11. Even considering the observations made by this Court in
      paragraph 10 in the case of Om Prakash Sharma (Supra) it can be said
      that Narayanasamy Mudaliar might have purchased the properties in
B     the name of defendant no.1 in order to provide his wife with a secured
      life in the event of his death. It is required to be noted that it was the
      specific case on behalf of the defendant no.1 that the suit properties
      were purchased by her from the Stridhana and on selling of the jewellery.
              12. It is required to be noted that the benami transaction came to
C     be amended in the year 2016. As per Section 3 of the Benami Transaction
      (Prohibition) Act 1988, there was a presumption that the transaction
      made in the name of the wife and children is for their benefit. By Benami
      Amendment Act, 2016, Section 3 (2) of the Benami Transaction Act,
      1988 the statutory presumption, which was rebuttable, has been omitted.
      It is the case on behalf of the respondents that therefore in view of
D     omission of Section 3(2) of the Benami Transaction Act, the plea of
      statutory presumption that the purchase made in the name of wife or
      children is for their benefit would not be available in the present case.
      Aforesaid cannot be accepted. As held by this Court in the case of
      Binapani Paul (Supra) the Benami Transaction (Prohibition) Act would
E     not be applicable retrospectively. Even otherwise and as observed
      hereinabove, the plaintiff has miserably failed to discharge his onus to
      prove that the Sale Deeds executed in favour of defendant no.1 were
      benami transactions and the same properties were purchased in the name
      of defendant no.1 by Narayanasamy Mudaliar from the amount received
      by him from the sale of other ancestral properties.
F
             12.1 Once it is held that the Sale Deeds in favour of defendant
      no.1 were not benami transactions, in that case, suit properties, except
      property nos. 1 and 3, which were purchased in her name and the same
      can be said to be her self-acquired properties and therefore cannot be
      said to be Joint Family Properties, the plaintiffs cannot be said to have
G     any share in the suit properties (except property nos. 1 and 3). At this
      stage, it is required to be noted that the learned Counsel appearing on
      behalf of defendant no.1 has specifically stated and admitted that the
      suit property Item nos. 1 and 3 can be said to be the ancestral properties
      and according to him even before the High Court also it was the case on
H
    MANGATHAI AMMAL (DIED) THR. LRS v. RAJESWARI                                  637
                 [M. R. SHAH, J.]

behalf of the defendant no.1 that item nos. 1 and 3 of the suit properties        A
are ancestral properties.
       13. In view of the above and for the reasons stated above, the
present appeal is partly allowed. The impugned judgement and order
passed by the High Court as well as the Trial Court holding that the
plaintiffs have 3/4th share in the suit properties (Except Item Nos. 1 and        B
3 of the suit properties) are hereby quashed and set aside. It is observed
and held that except Item Nos. 1 and 3 of the suit properties, the plaintiffs
have no share in other suit properties. Preliminary Decree directed to be
drawn by the learned Trial Court, confirmed by the High Court, is hereby
directed to be modified accordingly. The present appeal is partly allowed
to the aforesaid extent. No costs.                                                C


Nidhi Jain                                               Appeal partly allowed.


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