MAHAVEER CHAND SURANA Vs. YASHODA

JUDGEMENT

(1.) This suit has been filed by the plaintiff for a declaration that the plaintiff is the absolute owner of the suit property situate at 4/1, Audiappa Street, Purasawakkam, Madras-84, for a declaration that the sale deeds dated 16-6-95 executed by the first defendant in favour of the defendants 2 and 3 are sham and nominal and not binding on the plaintiff, for a permanent injunction restraining the defendants from altering the physical features of the property or dealing with the suit property without reference to the plaintiff's rights, for recovery of Rs. 20,000/- per month towards damages from the date of plaint till the date of delivery of possession and for costs.

(2.) Plaint averments are as follows :Plaintiff married the first defendant on 18-11-76 at Jain Bhavan, Madras according to Jain Custom. Two childern viz. M. Pinky and Naresh Kumar were born to them. When the suit property was acquired by the plaintiff out of his own funds, they were living at No. 93, Portughese Church Street, Madras-1 in 1989. Plaintiff was carrying on business under the name and style of M/s. Mahaveer Nylon Ropes Co. Out of his business income, the plaintiff purchased the suit property. He purchased part of the schedule mentioned property measuring 1776 sq. ft. by a registered Sale Deed dated 6-6-89 from Kamaleswari and others for a consideration of Rs. 3,50,000/- while he purchased 519 sq. ft. of property by a deed of sale dated 23-8-89 from Sathyaseelan for a consideration of Rs. 55,000/- He purchased the entire suit property in the name of his wife, the first defendant herein. He drew amounts from his Account No.765 with Indian Bank, Clock Tower Branch, Royapettah, Madras, for the purchase of the property. He also drew money from his account No. 2351, 176/1, 1633 held in Bank of Tamil Nadu, now merged with Indian Overseas Bank, Broadway, Madras. Apart from the above, he also availed overdraft facility from Indian Bank, Clock Tower Branch to the extent of Rs.2,00,000/- The said sale consideration of Rs. 3,50,000/- was paid to the vendors by way of demand draft while Rs.55,000/- was paid by way of cheque. He has been earning substantial income from his business and the first defendant is not the real owner of the suit property. He is the real owner. He obtained approved planning permission from the Corporation of Madras. He commenced demolition and reconstruction of the property. After following the usual procedures, he started erecting the new structures in accordance with the sanctioned plan. He engaged the services of Emerald Construction, Anna Nagar, Madras through their architect Mr. Sathnam Singh for the construction work. He completed substantial constructions of the property except plastering, paint washing, mosaic flooring and wooden work, etc. There had been difference of opinion between the plaintiff and the first defendant and she withdrew herself from the company of the plaintiff and moved to her mothers place. The suit property was purchased for the benefit of the family. The first defendant cannot claim any exclusive ownership over the property inasmuch as the plaintiff has contributed the entire sale consideration for the purchase of the suit property. The first defendant has removed all the original title deeds of the suit property and other documents. On enquiry, he was informed pursuant to a sale deed dated 16-6-95. Part of the suit property measuring 1465 sq.ft. in the ground floor was sold in favour of the second defendant for Rs. 6 lakhs. Similarly, the first floor was sold by the first defendant in favour of the third defendant for Rs.6.00 lakhs. After demolition and reconstruction, the property is worth several lakhs as on date. The real sale consideration in respect of the sale effected by the first defendant would be much more than what is stated above. The sales effected by her in favour of the defendants 2 and 3 are sham and nominal. The first defendant is a person of no means and has no independent source of income or any tangible property from and out of which she could purchase the suit property. If the suit property is let out to any third party on a rental basis, it would fetch a monthly rent of Rs. 20,000/- (Rs.10,000/- for each floor). He would have earned a minimum income of Rs.20-25 thousand per month from the property. Hence the suit.

(3.) In the written statement filed by the defendants 2 and 3, it is alleged that the suit property was purchased by the first defendant with her own funds. The suit property was not purchased for sentimental reasons by the plaintiff in the name of his wife. The allegation that the plaintiff obtained a draft for Rs. 2,50,000/- in the name of Kamaleswari and that Rs. 3,50,000/- was paid to the vendor is denied. The plaintiff never drew any money of the purchase fot the property. Plaintiff is not the real owner of the suit property. The defendants 2 and 3 made bona fide enquiries and verified the records and found that the 1st defendant was an Income-tax Assessee and that the suit property was declared to be her own property while disclosing the value of the property at Rs. 4,65,065/- in her trial balance. After obtaining declaration in the sale deed that the plaintiff has not contributed any amount either for the purchase of the suit property or for reconstruction of the building, they purchased the property and vacant possession was handed over by the 1st defendant to them. The first defendant also obtained sanction from MMDA in her name on 18-7-1990 for putting up a new construction in the suit property and after sanctioned plan was obtained, the construction was partly carried out. The Municipal assessment was also standing in the name of the first defendant. In all records, the suit property was declared and assessed as the property of the 1st defendant. The property was conveyed to them by two separate sale deeds for a total sale consideration of Rs. 12,00,000/- An Advocate Commissioner was appointed and he has filed a report. On perusal of the bank pass book of the plaintiff, it was noticed that the plaintiff had no sufficient bank balance on 6-6-1989 when the sale consideration was paid to the Vendors when they conveyed the property to the first defendant and there was only a balance of Rs. 618/- as on 2-4-89 and a sum of Rs. 6180/- as on 9-6-89. The entire sale consideration of Rs .3,50,000/- was paid by the first defendant. The first defendant was having a separate business and having a net income of Rs. 30,000/- for the year ending 31-3-1989 and Rs. 20,500/- for the year ending 31-3-1990. Section 3(2) of Benami Transaction (Prohibition) Act of 1988 provides that unless the contrary is proved, there is a presumption that the property was purchased for the benefit of the person in whose name the property was purchased. There is no benami purchase. After the purchase of the property, the defendants 2 and 3 spent several lakhs of rupees and completed the construction and are now in occupation of the suit property. The application No.4197/95 was dismissed on 2-2-96 and the O.S. Appeal No.165/96 was also dismissed on 13-10-1997. The first defendant was alone in exclusive possession and enjoyment of the suit property. The property after much publicity was sold only on 16-6-95 while the suit was filed in the end of July 1995. The suit is based on imaginary allegations. In order to blackmail the purchasers, the above suit has been filed vexatiously. Hence the suit is liable to be dismissd with exemplary costs.