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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2024
BEFORE
THE HON’BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.NO. 222 OF 2018 (PAR)
BETWEEN:
SRI. RAJ F MENEZES AGED ABOUT 65 YEARS, C/O. BRIGADE VIEW, 6TH BLOCK, 59, 17TH MAIN, KORAMANGALA, BANGALORE-560 034.
… APPELLANT (BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)
AND:
SMT. VATSALA AGED ABOUT 57 YEARS, DIVORCEE, W/O. SRI. RAJ F. MENEZES, D/O. SIR. F.J.S. PRABHU, NO.18, SARASWATHIAMMAL ROAD, MARUTHI SEVANAGAR, BANGALORE-560 033. … RESPONDENT
(BY SRI. G. KRISHNAMURTHY SR. COUNSEL FOR SMT. BHAVANA G.K., AND NIKHIL S. SINDAGI, ADVOCATE FOR RESPONDENTS)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.10.2017 PASSED IN R.A.NO. 58/2014 ON
THE FILE OF THE VII ADDL.DISTRICT AND SESSIONS JUDGE BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 05.03.2014 PASSED IN OS.NO.707/2003 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE, BANGALORE RURAL DIST. BANGALORE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 12.03.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the plaintiff/appellant aggrieved by the judgment and decree dated 05.03.2014 passed in O.S.No.707/2003 on the file of Prl. Senior Civil Judge Bangalore Rural District, Bangalore (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 07.10.2017 in R.A.No.58/2014 on the file of VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore (hereinafter 'the First Appellate Court').
The above suit is filed by the plaintiff seeking relief of declaration that he is the absolute owner of the suit property and for a direction to the defendant to deliver the vacant possession of the same.
The subject matter of suit is land along with building and structures existing thereon measuring an extent of 3 acres and 12 guntas in the Sy.No.109/1(old No.32) located at Jodi Pattandur Agrahara Village.
It is the case of the plaintiff that;
a. The defendant is his wife of the Plaintiff and that their marriage was solemnized on 10-05-1980. That their marriage was dissolved by decree of divorce on 04.05.1998.
b. That the suit schedule property was purchased by plaintiff in the name of the defendant on 06-08-1981 for a valuable sale consideration of Rs.35,000/- from its previous owner one Smt.Katamma. That subsequent to the deed of sale mutation was effected in the name the defendant.
c. That the plaintiff had made payment of entire sale consideration. The purchase of the suit schedule property was for the benefit of the plaintiff as well as the members of his family.
d. That prior to the divorce the plaintiff was in possession and enjoyment of the suit schedule property along with the defendant. The plaintiff developed the schedule property and had fenced around the same and he had installed gate and planted several fruit bearing trees and dugged borewell and fixed pumpset and constructed a shed and pump house. Thus, the plaintiff had invested huge amount for the purpose of purchase, development and maintenance of the suit property.
e. That the defendant had no income of any nature to purchase and develop the property. The plaintiff had provided money for the maintenance of the defendant and she was staying in Bangalore and plaintiff was working in the Middle East.
f. That all the documents pertaining to the suit property were left in Bangalore in the custody of the defendant. That the Plaintiff had been living separately from the defendant from the year 1995. The plaintiff that in the year 1995 came to India and visited the suit property, he found that defendant had appointed her father
F.J.S.Prabhu as her Power of Attorney holder who informed the plaintiff that the defendant has initiated a suit against the plaintiff in O.S.589/1995 in the Court of the II Munsiff, Bangalore and an exparte order of injunction has been granted restraining the plaintiff from interfering the possession of the defendant.
g. The Plaintiff had appeared in the said suit and contested the same. However said suit was decreed on 20.07.2001 by granting an order of permanent injunction in favour of the defendant against the plaintiff herein. As such the plaintiff sought delivery of the possession of the suit property in his favour.
The defendant filed her written statement denying the case of the plaintiff and specifically contended that;
(a) the defendant is the absolute owner and in possession over the suit property. That her ownership and possession has been confirmed in the suit in O.S.589/1995 by judgment and decree dated 20.07.2001. (b) The property was purchased by the defendant by paying entire sale consideration out of her own earning and
saving and contribution made from her parents. That all the development work were exclusively made by the defendant.
(c) That initially her mother was maintaining the property, thereafter her father is maintaining the property as a general power of attorney holder.
(d) That the plaintiff had no share, right, title and interest over the property and never been in possession of the property. That since the plaintiff tried to dispossess the defendant forcibly from the suit land, she had filed the suit in O.S.No.589/1995 and obtained an Order of injunction. The suit was barred by limitation and res-judicata. 6. Based on the pleadings, the Trial Court framed the following issues for its consideration:
Whether the plaintiff proves his ownership to the suit schedule property? 2. Whether the plaintiff further proves that the defendant dispossessed him from suit property on the basis of exparte order of injunction granted by the Vacation Judge in O.S.585/1995 on the file of 2nd Munsiff, Bangalore ? 3. Whether the defendant proves that the suit is not valued properly and court fee paid is insufficient?
Whether the plaintiff proves that the suit is barred b limitation? 5. Whether the defendant proves that the suit hit by the principles of res-judicata? 6. Whether the suit is not maintainable in view of the plaintiff not produced the RTC extracts? 7. Whether the plaintiff proves that he is entitled for the possession over the suit schedule property? 8. Whether the plaintiff is entitled for decree as prayed for? 9. To what order or decree?
One Nirmala Patro the power of attorney holder of the Plaintiff has been examined as PW.1 and two additional witnesses were examined as PW.2 to PW.6 and got marked 17 documents as Ex.P1 to Ex.P17. On the other hand, defendant herself examined as DW.1 and also examined one witness as DW.2 and got marked 131 documents as Ex.D1 to Ex.D131. On appreciation of the evidence the Trial Court answered issue Nos.1 to 8 in the negative and consequently dismissed the suit.
Being aggrieved by the aforesaid judgment and decree plaintiff filed an appeal in R.A.No.58/2014 before the First Appellate Court. Considering the grounds urged the First
Appellate Court framed the following points for its consideration: "1. Whether the suit is barred by limitation?
Whether the impugned judgment and decree passed by the trial court is perverse, capricious, illegal and liable to be set aside?
Whether the interference by this appellate court is necessary?
What Order?"
On re-appreciation of the evidence, the First Appellate Court answered point Nos.1 and 2 in the affirmative and point No.3 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same plaintiff/appellant is before this Court.
This Court by order dated 22.01.2024 had admitted to consider the following substantial question of law: "Whether the Trial Court and the First Appellate Court are justified in dismissing the suit of the plaintiff without referring to the evidence placed on record by the plaintiff more particularly deposition of PW-4 who is the witness to the Ex.P4-Sale Deed,
in the light of proviso to Section 3 of the Benami Transaction (Prohibition) Act, 1988?" and thereafter by order dated 27.02.2024 had framed the additional substantial questions of law: "(1) Whether in the light of omission of sub-section (2) of Section 3 of the Benami Transactions (Prohibition) Act, 1988, the suit of the plaintiff is maintainable?.
(2) Whether in the fact and circumstances of the case finding of the First Appellate Court with regard to the aspect of limitation is justified? "
Sri. Pavana Chandra Shetty, learned counsel for the plaintiff/appellant reiterating the grounds urged in the memorandum of appeal submitted that;
(a) The Trial Court and the First Appellate Court dismissed the suit mainly on the ground of the defendant obtaining decree in O.S.No.589/1995. That the said decree was obtained, behind the back of the plaintiff when he was abroad, and the judgment of the said suit could not have been the basis for dismissal of the present suit.
(b) That the Trial Court and the First Appellate Court have not appreciated the material evidence produced by
the plaintiff regarding payment of entire sale consideration by him and also evidence of he providing for maintenance and the upkeep of the suit schedule property as owner thereof. Learned counsel for the plaintiff referred to the accounts extracts at Ex.P11 to contend that the entire sale consideration paid by the plaintiff is evidenced in the said document. He also refers to evidence of witnesses more particularly PW.4 and PW.6 to justify the claim of the plaintiff having paid the entire sale consideration. (c). Further, learned counsel referring to section 2(9) and 3 and 4 of Benami Transactions (Prohibition) Act, 1988 (for short 'the Act, 1988') submitted that the present transaction is not a benami transaction as defined under the said provisions. He submits that the property was purchased in the name of defendant who is wife of the plaintiff for the benefit of the plaintiff and his family and as such the present case do not fall within the provision prohibiting such transaction. He relied upon the following judgments:
RAI BAHADUR MOHAN SINGH OBEROI VS. COMMISSIONER OF INCOME TAX W.B., reported in AIR 1973 SC 651.
BINAPANI PAUL V. PRATIMA GHOSH AND ORS reported in AIR 2008 SC 543.
DUVURU JAYA MOHANA REDDY AND ANOTHER VS. ALLURU NAGI REDDY AND OTHERS reported in AIR 1994 SC 1647.
JAYDAYAL PODDAR (DECEASED) THROUGH LRS., AND ANOTHER VS. MST. BIBI HAZRA AND OTHERS reported in AIR 1974 SC 171.
NAND KISHORE MEHRA VS. SUSHILA MEHRA reported in AIR 1995 SCC 2145.
YOGITA DASGUPTA VS. KAUSTAVA DASGUPTA in MAT.APP.(F.C.) No.7/2014 pronounced on 27.07.2016.
Per contra, Sri.Krishnamurty, learned senior counsel appearing for the defendant taking through the records submitted that;
(a) Negotiation with regard to purchase of the property had taken place in the year 1979 while the marriage of the plaintiff with the defendant was in the year 1980. That the defendant had entered into agreement of sale with the vendor by paying advance sale consideration in the year 1981. That the defendant paid the entire sale consideration on her own by way of demand draft on
04.08.1981 and the sale deed was executed on 06.08.1981 and the same was registered on 14.08.1981.
(b) The defendant had filed suit in O.S.No.589/1995 and had obtained the judgment and decree of permanent injunction against the plaintiff on 20.07.2001. That the said judgment and decree has attained finality.
(c) That in the meanwhile, the marriage was dissolved on 04.05.1998.
(d) The present suit is filed 09.09.2003 that is after 8 years from the date when the dispute arouse between the parties and after 5 years from the date of divorce between the parties.
(e) That the plaintiff has not discharged the burden of he having paid the sale consideration and purchasing the property for the benefit of the family.
(f) Referring to the documents relied upon by the plaintiff, namely, the accounts extracts, learned senior counsel submitted that same do not relate to the payments made in respect to the sale consideration.
(g) He relies upon the following judgments: 1. R. RAJAGOPALA REDDY(DEAD) BY LRS AND OTHERS V. PADMINI CHANDRASEKHARAN, reported in (1995) 2 SCC 630.
VALLIAMMAL (D) BY LRS V. SUBRAMANIAM AND ORS., in CIVIL APPEAL NO.5142/1998 DATED:31.08.2004.
NAVANEETHAMMAL V. ARJUNA CHETTY, in CIVIL APPEAL NO.1647/1980 DATED:06.09.1996.
CHENNAPPA VS. PARWATEWWA reported in 2022 SCC ONLINE KAR 1794.
MANGATHAI AMMAL (DIED) THROUGH LEGAL REPRESENTATIVES AND ORS VS. RAJESHWARI AND ORS, reported in (2020) 17 SCC 496.
PRATIMA PAUL AND ORS VS. RUPA PAUL AND ORS., reported in 2009 SCC online Cal 2341.
C.C. Joy Vs. C.D. Mini and Ors MANU/KE/1847/2022.
SEKHAR KUMAR ROY VS. LILA ROY AND ANOTHER reported in 2023 SCC ONLINE CAL 1399.
Heard and perused the records.
It is not in dispute that the marriage of the plaintiff and defendant was solemnized on 10.05.1980. That the suit schedule property was purchased under deed of sale dated 06.08.1981 registered on 14.08.1981. That the said deed of sale at Ex.D4 is in the name of defendant.
The dispute is on account of claim being made by the plaintiff that though the deed of sale dated 14.08.1981 at Ex.D4 is in the name of the defendant who was his wife, the entire sale consideration of Rs.35,000/- was paid by him and that said purchase was for his benefit and for the benefit of the family. While the defendant claims that she purchased the suit schedule property on her own and plaintiff has no right over the same.
Learned counsel for the plaintiff contended that transaction involved in the case is not 'Benami transaction' as such there is no prohibition in he filing the suit seeking declaration as sought for. It is relevant at this juncture to refer to the definition of 'Benami Transaction' in section 2(9)
(A) of the Act, 1988 which reads as under: "(9) "benami transaction" means,-
(A) a transaction or an arrangement-
(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration.
except when the property is held by--
……. ……
(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;"
Reading of the aforesaid provisions would indicate that when the property is held by any person being an individual in the name of his spouse, or in the name of any child of such individual and the consideration for such property has been provided or paid out of known sources of income of the individual, the same would not be considered as Benami Transaction.
The Trial Court at paragraph No.15 of its judgment referring to provisions of Sections 3 and 4 of the Act, 1988 has held that since the provisions of Section 3 permits purchase of the property in the name of the wife in fiduciary capacity the suit was maintainable and that Sections 3 and 4 would not come in the way of plaintiff instituting the suit. The
Trial Court referred to Sub-Section (2) of Section 3 of the Act, 1988 to hold that the said sub section (2) is an exception to Section 3. 19. The submission of learned senior counsel for the defendant is that in view of sub-Section (2) having been omitted by the Amendment Act, 2016 the said exception is no more available. Learned senior counsel further referred to the judgments of the Apex Court in the case of Rajagopala Reddy (Supra) to contend that prohibition contained under Section 4 (1) of the Act, 1988 though do not apply to the transactions that have taken place prior to coming into force of the Act, 1988, if the suit is instituted after the commencement of the Act, then the prohibition contained under Section 4 of the Act, 1988 will apply. He also refered to the judgment of the Apex Court in the case of Valliammal (D) by LR's (Supra) and submitted that the burden is on the plaintiff to prove that the transaction is not Benami transaction. 20. From the above, what emanates is that notwithstanding the rival contentions of the parties with regard to nature of the transaction and the provisions of the
Act, 1988 including omission of sub section (2) of Section 3 of the Act, 1988, the plaintiff in order to succeed in his claim at the first instance is required to establish that he paid Rs.35,000/- towards the sale consideration of the property from his known source of income.
The Trial Court at paragraph Nos.23 and 24 of its judgment has meticulously adverted to the contents of bank transactions/account extracts produced at Ex.P3, P4, P5, P6, P7, P8, P9, P10, P15, P16 and P17, and found that nothing is shown in these extracts regarding defendant having withdrawn any money on 06.08.1981 or prior to the said date for the purpose of payment of sale consideration.
Though it is contended by the plaintiff that he had deposited the amount into the bank accounts of the defendant during the year 1981 for the purpose of purchasing the property the Trial Court has found that there has been no such deposit made into the bank accounts maintained by the defendant either in the Syndicate Bank as per Ex.P4 or in the Corporation Bank as per Ex.P6 during the year 1981. Further even in the bank account maintained by the plaintiff in State
Bank of India as per Ex.P10 there is nothing to show that any amount had been deposited by him during the year 1981. Similar is the situation in respect of the bank accounts maintained by the plaintiff in the Corporation Bank as per Ex.P11.
The Trial Court has also referred to the document at Ex.P17 and an aggregate amount of Rs.50,700/- shown in the said account from Feb 1981 to June 1981 which is heavily relied upon by the learned counsel for the plaintiff to contend that it is the said amount which has been paid for the purpose of purchasing the suit schedule property. However, the Trial Court has also found that the payment of sale consideration of Rs.35,000/- do not correspond to the entries found at Ex.P17. The other documents produced by the plaintiff regarding the payment of money as rightly taken note of by the Trial Court are all for the year 1990-91 which are subsequent to the date of purchase. 24. Learned counsel for the plaintiff is unable to point out from records any evidence with regard to plaintiff
depositing the said amount of Rs.50,700/- into the bank accounts of the defendant.
Learned senior counsel for the defendant on the other hand submitted that the father of the defendant was working in an oil company and the mother of the defendant was also an employee and it is specific case of the defendant that she purchased the property out of her own savings and assistance of her parents. 26. Thus in the absence of any documentary evidence produced by the plaintiff to reconcile the payment as shown in the exhibits produced by the plaintiff with that of the date of sale it cannot be accepted that the payments were made by the plaintiff. Thus the findings of the Trial Court with regard to plaintiff failing to prove the payment of consideration are based on appreciation of facts emanating from the documentary evidence which has been confirmed by the First Appellate Court and same cannot be found fault with.
In the light of the aforesaid factual aspect of the matter, particularly when the documentary evidence do not support the case of the plaintiff of he paying the sale
consideration, the oral evidence more particularly of PW4 is of no avail. As such the contentions of the plaintiff contrary to the same cannot be countenanced.
Further, since the plaintiff failed to prove that the sale consideration was paid by him, the requirement of consideration of his plea regarding the purchase of property in the name of his wife in a fiduciary capacity for his benefit and for the benefit of the family would not arise. Consequently, the amendment to Section 3 of the Act, 1988 that was brought in the year 2016 deleting the sub-section (2) would not affect maintainability of the suit.
The reliance placed on the judgments by the learned counsel for the plaintiff to buttress his case of the plaintiff purchasing the property for the benefit of the plaintiff and his family is of no avail, when the plaintiff has failed in the first instance to establish the payment of sale consideration by him.
Further, though the Trial Court had declined the claim of the plaintiff of his ownership and he having been
dispossessed by the defendant pursuant to the judgment and decree passed in O.S.No.589/1995, had however found the suit to be within limitation inasmuch as the plaintiff has sought for relief of declaration and possession and held the same falls within and is governed under Article 65 of the Limitation Act.
The First Appellate Court on the other hand has adverted to aforesaid aspect of the matter and has found the suit to be barred by limitation. That admittedly suit in O.S.No.589/1995 was filed by the defendant against the plaintiff and the same was decreed by judgment and decree dated 20.07.2001. That the plaintiff had preferred regular appeal in R.A.No.181/2001 which was dismissed on 08.11.2006 confirming the judgment and decree passed by the Trial Court in O.S.No.589/1995 wherein lawful possession and enjoyment of the defendant was confirmed. In the light of the above undisputed facts plaintiff filed the present suit in O.S.No.707/2005, nine years subsequent to the dispute and three years subsequent to passing of judgment and decree in the previous suit. The First Appellate Court taking note of
these aspects of the matter has held that the suit for declaration filed by the plaintiff barred in view of provision contained in the Limitation Act as right to sue had accrued to the plaintiff within three years from the date of denial of his right.
Further even according to the plaintiff he has pleaded in para No.10 of the plaint that the cause of action to the suit had arouse during October 1989 when the defendant disputed the title of the plaintiff and when the defendant filed the suit in O.S.No.589/1995. Taking note of this pleading and evidence placed on record the First Appellate Court came to the conclusion that when the defendant had filed the suit for injunction claiming to be the owner in lawful possession, the plaintiff could have filed counter claim. The First Appellate Court has found that it is only to save the suit from being barred under limitation, the plaintiff sought for relief of possession contrary to the material on record and accordingly dismissed the appeal confirming the judgment and decree passed by the Trial Court. No infirmity can be found with the reasons assigned by the First Appellate Court in this regard.
For the aforesaid reasons and analysis the substantial questions of law are answered accordingly. The appeal is dismissed confirming the judgment and decree passed by the Trial Court and the judgment and order passed by the First Appellate Court.
Sd/- JUDGE