Mr Naveen G Rolands vs Mrs Laetitia Rolands
2022 Latest Caselaw 4890 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 16TH DAY OF MARCH, 2022

                      PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                        AND

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

  MISCELLANEOUS FIRST APPEAL No.6616/2011

BETWEEN:

MR. NAVEEN G. ROLANDS
S/O MR. ROLANDS G. NAYAGOM,
AGED ABOUT 39 YEARS,
CHRISTIAN, BUSINESSMAN,
R/AT NO.2367, 6TH MAIN ROAD,
H.A.L. 2ND STAGE,
BANGALORE-560008.                    ... APPELLANT

(BY SRI RAVISHANKAR, ADV. FOR
    SRI P.B.APPAIAH, ADV.)

AND:

MRS. LAETITIA ROLANDS
W/O MR. NAVEEN G. ROLANDS,
AGED ABOUT 36 YEARS,
D/O MRS. CECILIA FERNANDEZ @
MALA AND MR. LOUIS FERNANDEZ,
CHRISTIAN, PREVIOUSLY R/AT
NO.67, MATHRA LAYOUT,
YELAHANKA, BANGALORE-560064,
AND PRESENTLY R/AT
NO.29, 1ST FLOOR, ANNAYAPPA BLOCK,
1ST CROSS, BENSON TOWN,
BANGALORE-560046.                    ... RESPONDENT

(BY SMT. ROSA PARAMAL, ADV.)
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE
JUDGEMENT AND DECREE DATED 24.3.2011 PASSED IN
O.S.NO.225/2005 ON THE FILE OF I ADDITIONAL FAMILY
COURT, BANGALORE, DISMISSING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY,  VISHWAJITH     SHETTY   J.,  DELIVERED   THE
FOLLOWING:

                    JUDGMENT

This miscellaneous first appeal is filed by the

plaintiff challenging the judgment and decree dated

24.03.2011 passed by the court of 1st Additional Family

Court at Bangalore in O.S.No.225/2005.

2. The parties are referred to by their rankings

assigned to them in the Family Court.

3. Brief facts of the case that would be relevant for

the purpose of disposal of this appeal are:

Plaintiff is the husband of the defendant and from

the wedlock, they have a daughter. The plaintiff had

filed O.S.No.225/2005 against the defendant with a

prayer for declaration that the plaintiff is the absolute

owner of the plaint schedule property and the sale deed

executed in the name of the defendant in respect of the

plaint schedule property is only nominal and benami. In

the said suit, plaintiff had also sought the consequential

relief of permanent injunction restraining the defendant

from interfering with the plaintiff's possession over the

plaint schedule property.

4. According to the plaintiff, the relationship

between the couple was cordial for about five years after

the marriage and thereafter, difference of opinion arose

between them having regard to the intimate relationship

developed by defendant with one Koshi Ibrahim.

Thereafterwards, the husband and wife started residing

separately. The plaintiff had earlier purchased the plaint

schedule property for a sale consideration of

Rs.11,83,500/- from one Mrs.Puja Kanugo and the sale

deed in respect of the plaint schedule property was

executed in the name of the defendant, who was only a

name-lender and the plaintiff was in actual possession

and enjoyment of the plaint schedule property.

According to the plaintiff, the plaint schedule property

was purchased in the name of the defendant as benami

since his vendor Mrs.Puja Kanugo and himself were the

owners of the sites sold by M/s.Amarjyothi House

Building Co-operative Society. He contended that the

purchase of the plaint schedule property was not to the

benefit of the defendant. It is his case that the entire

sale consideration was transferred from his bank account

and in view of subsequent matrimonial dispute, the

defendant and her parents were taking advantage of the

situation and they were trying to dispossess him from the

plaint schedule property.

5. The defendant had entered appearance in the

said suit and had filed a written statement denying the

contentions of the plaintiff. It is her specific case that

she was the absolute owner of the plaint schedule

property and was in possession of the same. She had

contended that the plaintiff had changed his character

and he was behaving like a woman and he used to wear

the ladies' clothes, chappals, ear-rings, bangles, etc. She

has further contended that the plaint schedule property

was purchased by her from her own earnings and out of

the profits from her Company known as Ostofold

Software Private Limited of which plaintiff was made as

Managing Director. She had denied that the plaint

schedule property was purchased Benami in her name.

She had contended that she is a B.A. graduate, earlier

working at Marlin Hawk, a Software Company at

Bangalore and thereafterwards in M/s.Brooke Bond India

Limited, until she started a Private Limited Company of

her own known as Ostofold Software Private Limited.

Accordingly, she had prayed to dismiss the suit.

6. On the basis of the rival pleadings, the Family

Court framed the following issues:

"1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property having purchased it benami in the name of the defendant from his own funds?

2. Whether the plaintiff is entitled for the relief of declaration as prayed?

3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed?

4. What order or decree?"

7. Before the Family Court, the plaintiff was

examined as PW-1 and seven documents were marked in

support of his case as Exs.P1 to P7. On behalf of the

defence, the defendant was examined as DW-1.

However, no documents were marked on her behalf. The

Family Court thereafterwards heard the arguments on

both sides and vide the impugned judgment and decree

dismissed the suit with cost. Being aggrieved by the

same, the plaintiff is in appeal.

8. Learned counsel for the plaintiff submits that the

material on record would go to show that the entire sale

consideration in respect of the plaint schedule property

was paid from the bank account of the plaintiff and this

aspect of the matter has not been properly appreciated

by the Family Court. He submits that the bar under

Section 3 of the Benami Transactions (Prohibition) Act,

1988 ("the Act" for short) will not be applicable to the

present case as the defendant is his wife. He submits

that Trial Court has erred in holding that plaintiff had not

proved that the property was purchased in the name of

dependent for her benefit, which is not the requirement

under law. He has also submitted that two other suits

filed for similar reliefs have been decreed in favour of the

plaintiff. However, the present suit has been dismissed

without appreciating the same.

9. Per contra, learned counsel for the defendant

submits that the bar under Section 3 of the Act would be

applicable to the plaintiff since plaintiff has failed to prove

that the property was not purchased for the benefit of

the wife. She submits that in the other two suits, there

was no admission that the property was purchased

Benami in the name of the defendant-wife and further

she had not contested the said suit by participating in the

trial. She submits that the impugned judgment and

decree passed by the Family Court does not suffer from

any infirmity or illegality and accordingly, prays to

dismiss the appeal.

10. We have given our anxious consideration to the

arguments addressed on both sides and also perused the

material available on record.

11. It is not in dispute that the plaint schedule

property has been purchased in the name of the

defendant. The plaintiff had filed the present suit for

declaration of his title and that the sale deed of the plaint

schedule property was executed in the name of

defendant nominally. It is the specific case of the

plaintiff in his pleadings that the plaint schedule property

has been purchased by him benami in the name of

defendant and for the purpose of said purchase, the

money was paid from his bank account.

12. Learned counsel for the plaintiff has

strenuously contended that Trial Court has erred in

dismissing the suit on the ground that the plaintiff has

failed to prove that the property was purchased benami

in the name of defendant for her benefit and therefore,

he was not entitled for the relief. We find some force in

the said argument.

13. The Benami Transactions (Prohibition) Act,

which has come into force w.e.f. 19.05.1988, prohibits all

benami transactions and the only exception mentioned in

the Act is the purchase made by the husband in the

name of his wife and by a father in the name of his

unmarried daughters. Under Section 3(2) of the Act,

there is a presumption in favour of the wife that the

property purchased by the husband benami in her name

is for her benefit. Therefore, unless the husband rebuts

the said presumption and proves that the property was

not purchased by him in the name of his wife for her

benefit, he would not be entitled for any relief.

14. The Hon'ble Supreme Court in the case of

Nand Kishore Mehra -vs- Sushila Mehra reported in

AIR 1995 SC 2145 has held that the prohibition under

Section 3 of the Act would not be applicable for

purchasing of a property by a person in the name of his

wife and the unmarried daughters only in the event he

proves that such purchase was not for the benefit of the

wife or unmarried daughters.

15. The evidence on record would go to show that

the plaint schedule property was purchased when the

relationship of the plaintiff and the defendant was cordial.

The burden to prove that the plaint schedule property

was purchased benami in the name of the defendant and

not for her benefit, is on the plaintiff. Though the

plaintiff has stated that the entire sale consideration in

respect of the plaint schedule property was paid by him,

the same has been denied by the defendant. The

defendant has stated that she is a B.A. graduate and

initially she was working in a Software Company at

Bangalore and subsequently in M/s.Brooke Bond India

Limited, until she started a Private Limited Company of

her own known as Ostofold Software Private Limited.

16. It is not in dispute that the plaintiff was the

Managing Director of the said Company and the

defendant was also a Director of the said Company. The

defendant has stated during the course of her cross-

examination that the amount of Rs.12 lakhs was

transferred to her account by the plaintiff towards

remuneration for the work done by her in the said

Company as a Director. In view of this evidence

available on record, it cannot be said that the plaintiff

has successfully proved that the plaint schedule property

was purchased by him benami in the name of the

defendant and the entire sale consideration for purchase

was paid by him. Moreover, there is a presumption

under Section 3(2) of the Act that a purchase made by

the husband in the name of his wife is for her benefit and

unless the said presumption is rebutted by producing

cogent evidence, the relief prayed for by the plaintiff in

the present case cannot be granted. We are of the

considered view that the plaintiff has failed to discharge

the said burden and therefore, in view of the law laid

down by the Hon'ble Supreme Court in the case of Nand

Kishore Mehra (supra), he cannot be granted the relief

of declaration sought for in the suit.

17. Though the learned counsel for the plaintiff has

brought to the notice of this court that in similar other

two suits, a decree was passed in his favour, a careful

appreciation of the judgment and decree passed in the

said suits, which is made available to the court, would

make it clear that in the said suits, there was no plea of

benami transaction, whereas in the present suit, there is

a specific plea that the purchase was made by the

plaintiff in the name of defendant as benami and

therefore, it is for the plaintiff to prove that the purchase

was not for the benefit of the wife, otherwise in view of

Section 3(2) of the Act, there is a presumption that said

purchase is for the benefit of the wife and therefore, the

plaintiff would not be entitled for the relief sought for by

him.

18. The plaint schedule property admittedly stands

in the name of the defendant and therefore, for all

purposes, she is considered as owner of the plaint

schedule property, unless the contrary is proved.

Though the plaintiff has contended that he has been in

possession and enjoyment of the property even though

the same is purchased in the name of the defendant, he

has failed to prove the same. It is needless to state that

possession follows title and a decree of permanent

injunction cannot be granted against the true owner of

the property. The Family Court having appreciated this

aspect of the matter has rightly rejected the prayer of

the plaintiff even for permanent injunction.

19. On re-appreciation of the entire materials

available on record, we are of the considered view that

though the reasonings assigned by the Trial Court to

dismiss the prayer for declaration is erroneous, since the

plaintiff has failed to prove that the purchase of property

in the name of defendant was not for her benefit, the

presumption under Section 3(2) of the Act is not

discharged and therefore, O.S.No.225/2005 is liable to

be dismissed. We, therefore, find no merit in the appeal.

Under the circumstances, the appeal must fail and

accordingly, the same is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

KNM/-