OTTUR PRABHAKARA MENON Vs. MADAMBATH RUGMINI AMMA

JUDGEMENT

(1.) SINCE a Division Bench felt some doubt regarding the correctness of the decision in Kuttappan Nair v. Commissioner of Wealth Tax ,Kerala(1969 K.L.T.427 ),the appeal has been placed before a Full Bench.

(2.) THE appeal arises in execution;and the question raised is whether the property standing in the name of the respondent belonged to her as property purchased benami in her name by her husband.The appellant is the plaintiff decree -holder and the respondent the fourth defendant.The appellant obtained a decree against the first defendant,now deceased,the husband of the respondant;and in execution of the decree,an item of property with a house thereon purchased in the name of the respondent was attached The respondent filed a petition before the lower court for raising the attachment claiming that the property belonged to her.Objection was taken by the appellant that the property belonged to the first defendant and the purchase in the name of the respondent was only benami for him.This objection was everruled and the petition of the respondent was allowed.Hence the appeal.

(3.) IF the matter is viewed in the light of the principles enacted in sections 81 and 82 of the Indian Trusts Act,there cannot be any doubt that the decision of the lower court is right,Section 81 of the Indian Trusts Act reads; Where the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances O.P.Menon v.M.Rugmini(Raghavan Ag.C.J.)(F.B.) that he intended to dispose of the beneficial interest therein,the transferee or legatee must hold such property for the benefit of the owner or his legal representative. Illustration(d)to the section might also be noted: ( d)A makes a gift of certain land to his wife B.She takes the beneficial interest in the land free from any trust in favour of A,for it may be inferred from the circumstancesthat the gift was for B 's benefit. And section 82 reads: Where property is transferred to one person for a consideration paid or provided by another person,and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee,the transferee must hold the property for the benefit of the person paying or providing the consideration. Now,two things have to be established under Section 82,one,that the consideration for the purchase was paid or provided by another person,and two,that it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee.If these two conditions are established,then the transferee has to hold the property for the benefit of the person who paid or provided the consideration.In the light of this principle,the Subordinate Judge has considered the circumstances in the case in paragraph 4 of his Judgment and has held that the purchase was for the benefit of the respondent,in other words,the beneficial interest in the property also vested in the respondent.The evidence in the case has disclosed that the consideration for the purchase must have come from the first defendant the husband of the respondent;and we need not go into the details of the evidence on this aspect as this fact is not seriously disputed before us.But,ever since the purchase under Ex.A1 in 1948,the government assess­ment has been paid by the respondent;the municipal tax has also been paid by her(vide Exx A2 to A5 and Exx A6 to A24 ).Circumstances are also lacking as to why the first defendant should have thought of a benami purchase in the name of the respondent.The only circumstance relied on by the counsel of the appellant is a recital in Ex.B1 dated 30th May 1950,a partition deed in the tarwad of the first defendant.There is a recital in that document that the first defendant purchased a building of his own in Palghat and was residing there.From this it is urged that this is an assertion by the first defendant that he had no intention to benefit the respondent at the time - that he was claiming the house as his.The Subordinate Judge has not agreed with this contention,nor do we agree.The recital means only that the tarwad house need not be left in common as the common ancestress died and as the first defendant was not living there,he having shifted his residence to the house he purchased in Palghat.There was no occasion then to claim that the house was his,the purpose of the recital being just to state that he was living in another house;to whom that house belonged was of no consequence.Therefore,basing on this recital alone,the appellant cannot contend that the first defendant did not then have the intention to benefit the respondent by the purchase.