ARAVALA MADAN Vs. RAMAYI NAGAMI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff from the judgment and decree of the leaned District Judge of Nagercoil in O. S. 101 of 1117 of his court. After the filing of the appeal the appellant died and one of his sons by his 1st wife was brought on record as his legal representative. The 1st defendant was the 2nd wife of the deceased plaintiff. The suit was for a declaration that Exts. I, II, III, and VIII sale deeds in respect of the plaint items standing in the name of the 1st defendant were taken benami for the plaintiff and that the beneficial interest in the properties vested in the plaintiff. Plaintiff also prayed for an injunction restraining the 1st defendant from entering the properties. The trial court dismissed the suit. The plaintiff has therefore come in appeal.

(2.) THE learned judge on a consideration of the evidence in the case, has found that the plaintiff has not proved that he advanced funds for the above four sale deeds. This finding is very seriously challenged in appeal. It is contended that the plaintiff has adduced clear evidence to establish that he had ample means for the acquisitions of the properties, while 1st defendant has not been able to show by any positive evidence that she had any means or income worth the name from which the properties could have been acquired. THE learned advocate for the appellant therefore argues that even though his client was not able to prove the particular fund from which the consideration for each of the sale deed has proceeded, it has in the circumstances of the case to be inferred that the plaintiff supplied the funds necessary for the documents in question. But even assuming that the plaintiff supplied the funds for taking Exts. I, II, III and VIII, we do not think, that in itself, is conclusive on the question of ownership. THE source from which the consideration has come, no doubt, furnishes a valuable test but it is wrong to regard it as the sole or conclusive criterion. It is true that the doctrine of advancement does not apply to the parties who are Indian Christians. Still the relationship of the parties and the motive that operated at the time of the acquisitions of the properties are factors which have to be taken into consideration in determining the question whether the transactions were real or were only benami, for after all the question really is one of intention. In this case the plaintiff whose first wife died early and who had also children by her, married the first defendant a young woman while he was somewhat advanced in age. He had four children all daughters by the 2nd marriage. It is also seen that some time after his marriage with the 1st defendant the plaintiff's children by the 1st wife quarreled and fell out with him. THEy asserted rights over the properties standing in his name and threatened to trespass into those properties. This is admitted in paragraphs 5 and 6 of the plaint. In the position in which he was placed it was only natural that the plaintiff should have thought of making some provision for the 1st defendant. In fact it is clearly averred in paragraphs 5 and 6 that the motive for the acquisitions in the name of the first defendant was the hostility of the plaintiff's sons by his first wife. Evidently the plaintiff wanted his wife to have some properties for herself which would be out of reach of his sons who were on terms of enmity. Thus the motive alleged for the transactions itself suggests that the purpose in view could be served only by genuine transactions and not by benami ones. In these circumstances the reasonable inference is that the sale deeds far from being benami were intended to be real. THE decision reported in ILR 33 cal. 773 is in point. In that case their Lordships of the Judicial Committee observe as follows: "the fact, therefore, remains that the properties purchased by the sale proceeds were purchased no doubt in Hafix Boo's name, but were purchased out of funds emanating from her mother's estate. This circumstance no doubt, if taken alone, affords evidence that the transaction was benami, but there is, in their Lordships' opinion, enough in the facts of the case to negative any such inference. It seems clear that what was done in 1889 was prompted by hostility to the son and was with the purpose of excluding him from inheritance, an object which could not have been attained by any benami transaction. " See also the decisions in AIR 1934 Mad. 671 and AIR 1938 mad. 8.