Madras High Court
Ambulu Ammal vs Anbumani on 2 February, 2021
C.M.S.A.No.2 of 2004 and
C.M.P.No.880 of 2004
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.S.A.No.2 of 2004 and
C.M.P.No.880 of 2004
Ambulu Ammal
... Appellant
Vs.
1.Anbumani
2.Kumaresan
.. Respondents
Prayer : Civil Miscellaneous Second Appeal filed under Section 100 of
C.P.C., against the judgment and decree made in C.M.A.No.48 of 2003,
dated 29.09.2003 on the file of the court of District Judge, Nagapattinam
in reversing the judgment and decree made in E.A.No.27 of 2002 in
E.P.No.220 of 2001 in O.S.No.215 of 2000 dated 13.12.2002, on the file
of the Court of Additional Sub-ordinate Judge, Mayiladuthurai.
For Appellant : Ms.P.Srividya for
Mr.A.Muthukumar
For Respondents : Mr.N.A.Nissar Ahamed for R1
R2-NDW
1/11
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C.M.S.A.No.2 of 2004 and
C.M.P.No.880 of 2004
JUDGMENT
The judgment and decree made in C.M.A.No.48 of 2003, dated
29.09.2003, in reversing the judgment and decree made in E.A.No.27 of
2002 in E.P.No.220 of 2001 in O.S.No.215 of 2000 dated 13.12.2002, is
under challenge in the present civil miscellaneous second appeal.
2. The substantial questions of law raised by the appellant are as
follows:
1. When the attached property was purchased by
the judgment debtor in the name of the wife, who had no
separate income as admitted by her, whether the lower
Appellate Court erred in law in holding that the attached
property is not liable for the satisfaction of the decree?
2. When the case pleaded by the claimant/wife of
the judgment debtor is proved to be false, whether the
lower Appellate Court not erred in law holding that the
attached property belongs to the wife of the judgment
debtor and not liable for execution of the decree?
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3.Whether the lower Appellate Court erred in law
in applying the provisions of Benami Transactions
(Prohibition) Act, 1988 for the fraudulent acts of the
respondents?
4.Whether the lower Appellate Court erred in law
in placing the burden of proof on the decree holder when
evidence on record clearly proves that the judgment
debtor, with an intention to cheat, had purchased the
property in the name of his wife, the claimant?
5.Whether the lower Appellate Court
misconstrued and misinterpreted the provisions of
Benami Transactions (Prohibitions) Act, 1988?
6.Whether the finding of the lower Appellate
Court that the attached property was purchased prior to
the decree debt is perverse?
7. Whether an order attaching an immovable
property before judgment which was made absolute on
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C.M.P.No.880 of 2004
passing the decree which has become final, could be
challenged in the execution proceedings?
3. The learned counsel appearing on behalf of the appellant
contended by stating that the main substantial question of law is whether
the Lower Appellate Court erred in law in applying the provisions of the
Benami Transactions (Prohibitions) Act for fraudulent acts of the
respondents? Whether the Lower Appellate Court misconstrued and
misinterpreted the provisions of the Benami Transactions (Prohibitions)
Act? The other questions of law raised are related to be factual matrix
which cannot be adjudicated in the present civil miscellaneous second
appeal.
4. It is a simple suit for recovery of money based on the
promissory note. Admittedly, an exparte decree was obtained by the
appellant. Based on the exparte decree passed in O.S.No.215 of 2000, on
the file of the Additional Sub Court, Mayiladuthurai, E.P.No.220 of
2001 was filed. The defendant in the suit had not repaid the borrowed
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C.M.S.A.No.2 of 2004 and
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money despite the exparte decree passed by the Civil Court in the
original suit. In the execution petition proceedings, the decree holder
impleaded the wife of the judgment debtor and sought to attach the
properties stand in the name of the wife of the defendant. The Trial
Court allowed the execution petition and attached the properties stand in
the name of the wife of the defendant and challenging the said judgment,
the wife of the defendant filed C.M.A.No.48 of 2003.
5. The first Appellate Court adjudicated the issues based on the
facts as well as grounds raised. It is an admitted fact that the first
respondent Anbumani who is the wife of the defendant in the suit was
not a party to the original suit filed by the appellant in O.S.No.215 of
2000. The exparte decree was passed against the second respondent
herein and for the first time, the first respondent was impleaded as
respondent in the execution proceedings filed in E.P.No.220 of 2001.
Thus, the facts are not disputed between the parties.
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6. The First Appellate Court \ District Court, Nagapattinam,
elaborately considered the facts and circumstances as well as the
grounds raised by the appellant. The First Appellate Court arrived at the
findings that there is no possibility of fraudulent act on the part of the
first respondent /wife of the defendant as the property which is sought to
be attached was purchased well before the exparte decree passed in the
original suit. Thus, there is no proof to establish that the property stands
in the name of the wife of the defendant, was purchased to fructify the
decree passed in favour of the appellant. The question of benami
transaction does not arise in this case, in view of the fact that the
property stands in the name of the wife and the benami transaction and
the nature of purchase are not established except by stating that the first
respondent wife had no independent sources of income. Mere fact that
the property purchased in the name of the wife from and out of the
sources of income from the husband, would not construe that the said
purchase falls under the provisions of the benami Act. The various
factors are to be considered for bringing certain purchase of the
properties under the benami Act.
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7. Mere purchase of the property by the husband under the name
of the wife, from and out of his own sources of income, would not
provide the implied meaning that the property would be falling under
the provisions of Benami Transaction (Prohibition) Act. Undoubtedly,
the appellant could able to establish that the wife of the defendant has no
independent sources of income, however, various other factors are also
to be considered.
8. The first Appellate Court has rightly considered the documents
as well as the evidence with reference to the documents. When the
property was purchased before the decree and it is brought to the notice
of this Court that before the promissory note which was the basis for the
decree in the original suit, then, there is no reason to arrive a conclusion
that the property falls under the provisions of the Benami Transaction
(Prohibition) Act and liable to be attached in order to realise the decree
amount. The said findings of the first Appellate Court is unambiguous.
However, the said facts are also well considered by the first Appellate
Court with reference to the Benami Transaction (Prohibition) Act. The
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findings in this regard reads as under:
“”“gpdhkp jil rl;lk; ,aw;wg;gl;L mJ
eilKiwg;gLj;jg;gl;l gpd;dh; xU fztd; jd;
kidtp bgahpy; xU brhj;ij fpuak;
bgw;wpUe;jhy; mJ kidtpapd; ed;ikf;fhf
th';fg;gl;ljhfnt mDkhdpf;f ntz;Lk;/ ,e;j
fpuak; fld; bfhLj;jth;fis
Vkhw;Wtjw;fhfnth my;yJ gpwiu nkhro
bra;tjw;fhfnth th';fg;gl;lJ vd;W ahh;
Tw;W vGg;g[fpd;whh;fnsh mth;fs;jhd; me;j
Tw;wpid bka;g;gpf;f flikg;gl;lth;fs;/
,t;tHf;fpy; fpuag;gj;jpuk; nky;KiwaPl;lhsh;
bgahpy; mike;Js;sJ/ nky;KiwaPl;lhsh;
jug;gpy;. 1k; vjph;nky;KiwaPl;lhsUf;Fk; 2?k;
vjph;nky;KiwaPl;lhsUf;Fk; ,ilna bfhLf;fy;
th';fy; ,Ue;jjhft[k;. tHf;fpil brhj;J
jhth flDWjpr;rPl;Lf; Kd;ghfnt ,e;j fpuak;
nky;KiwaPl;lhsh; bgahpy; th';fg;gl;lJ vd;Wk;.
vdnt ,e;j fpuaj; bjhifia jPh;g;ghid
bgw;w 1k; vjph;nky;KiwaPl;lhsh; flid nkhro
bra;tjw;fhfnth my;yJ me;j jPh;g;ghidia
epiwntw;w Koahj tifapy; 2?k;
vjph;nky;KiwaPl;lhsh; brhj;ij
nky;KiwaPl;lhhsUf;F fpuak; bra;J
bfhLj;jpUf;f KoahJ vd thjpl;l thjk;
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C.M.P.No.880 of 2004
Vw;g[ila xd;W vd ,e;ePjpkd;wk; fUJfpwJ/
vdnt 1?k; vjph;nky;KiwaPl;lhsuhd thjp
jPh;g;g[f;F Kd;g[ tHf;fpil brhj;jpid gw;Wif
bra;a[k;nghJ tHf;fpil brhj;J vjph;thjpahd
2k; vjph;nky;KiwaPl;lhsUf;F ghj;jpag;gl;ljhf
,Uf;f ntz;Lk;/ fldhsp vd;w fld; bgw;wth;
brhj;ijjhd; flid jPh;g;gjw;fhf gw;Wif
bra;a Koa[k;/ Mdhy; ,t;tHf;fpy; tHf;fpil
brhj;J nky;KiwaPl;lhsUila brhj;jhf
,Uf;Fk;nghJ ,UtUk; mjhtJ
nky;KiwaPl;lhsUk; 2?k;
vjph;nky;KiwaPl;lhsUk; fztd; kidtpahf
,Ue;jhYk; Tl tHf;fpil brhj;J kidtpapd;
brhj;jhf ,Uf;Fk;nghJ fzth; bgw;w
flDf;fhf gw;Wif bra;a KoahJ/ gpdhkp
jil rl;lj;jpd;go ,e;j tHf;fpil brhj;J
fztuhy; mtuJ kidtp bgaUf;F th';fpf;
bfhLj;jpUe;jhYk; mJ kidtpapd;
ed;ikf;fhf th';fg;gl;ljhfj;jhd; mika[k;.
vdnt tHf;fpil brhj;J 1?k;
vjph;nky;KiwaPl;lhshplk; fld; bgWtjw;F
Kd;ng fpuak; bgw;Ws;s epiyapy; fld;
bfhLj;jtUf;F ,e;j tHf;fpil brhj;ij
gw;Wif bra;a KoahJ/”
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C.M.S.A.No.2 of 2004 and
C.M.P.No.880 of 2004
9. Perusal of the above findings of the first Appellate Court
reveals that the documents as well as the factual matrix established are
well considered and therefore, this Court has no hesitation in arriving a
conclusion that there is no substantial question of law raised so as to
interfere with the judgment of the first Appellate Court. In view of this
matter, the judgment and decree dated 29.09.2003 passed in
C.M.A.No.48 of 2003 stands confirmed and C.M.S.A.No.2 of 2004
stands dismissed. No costs. Consequently, connected miscellaneous
petition is also closed.
02.02.2021
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
gsk
To
1.The District Judge, Nagapattinam.
2.The Additional Sub-ordinate Judge, Mayiladuthurai.
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C.M.S.A.No.2 of 2004 and
C.M.P.No.880 of 2004
S.M.SUBRAMANIAM, J.
gsk
C.M.S.A.No.2 of 2004 and
C.M.P.No.880 of 2004
02.02.2021
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