Madras High Court
K.Eswaran vs Saraswathi on 12 November, 2021
S.A.No.806 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 12.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.806 of 2021
K.Eswaran,
Son of C.Kandasamy Gounder,
Door No.16/4, Aanaikulimedu,
Sivanmalai Village,
Kangayam Taluk,
Tiruppur District. ... Appellant
.Vs.
S.Kandasamy (died)
Samiathal (died)
1.Saraswathi,
Wife of Late Govindasamy Gounder,
Theneeswaranpalaym,
Uthukuli Post,
Perundurai Taluk,
Erode District.
2.The Sub Registrar,
Kangayam.
3.D.Palanisamy,
Son of K.Duraisamy Gounder,
Door No.2/12, K.Ayyampalayam,
Karaipudur Village,
Palladam Taluk,
Tiruppur District. ... Respondents
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S.A.No.806 of 2021
PRAYER: Second Appeal filed under Section 100 of CPC against the
Judgment and Decree passed in A.S.No.3 of 2019 dated 13.12.2019 on
the file of the Subordinate Judge, Kangayam, Tiruppur District,
confirming the Judgment and Decree passed in O.S.No.273 of 2011
dated 03.02.2018 on the file of the District Munsif Court, Kangayam,
Tiruppur District.
For Appellant : Mr.S.Saravanan
JUDGMENT
The Second Appeal is filed challenging the judgment and decree
passed in A.S.No.3 of 2019, dated 13.12.2019 passed by the learned
Subordinate Judge, Kangayam.
2.The Appellant as a Plaintiff filed the Suit, seeking relief that
(a)settlement deed executed by the 1st Defendant in favour of the 3rd
Defendant on 20.06.2011 to be declared as null and void; (b)to declare
that the Suit property belongs to him; (c)for permanent injunction
restraining the Defendants 1 to 3 from interfering with possession and
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S.A.No.806 of 2021
enjoyment and not to alienate the suit property and (d)restraining the 4th
Defendant from registering the documents produced by the Defendants 1
and 3 and for costs.
3.The case of the Appellant/plaintiff is that he is the son of
deceased 1st Defendant and his Mother is 2nd Defendant Ms.Samiathal.
The 3rd Defendant is his sister. It is his case that he was working in a
Baniyan Company and earning good income and he was alone taking
care of his parents/Defendants 1 and 2. With the amount earned by him,
he purchased the suit property in his father's name on 29.05.2000.
Though he contributed money for the purchase of the suit property, his
father being elder member of the family, the property was purchased in
his name. He is in possession and enjoyment of the suit property from
the date of purchase. Without the knowledge of the Plaintiff, the 1 st
Defendant had executed settlement deed dated 20.06.2011. The 1st
Defendant has no right to execute the settlement deed and therefore, the
Suit was filed.
4.The 3rd Defendant/1st Respondent has filed a written statement
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S.A.No.806 of 2021
and totally denied the case of the Plaintiff. It is the case of the 3rd
Defendant that the suit property was purchased by the 1st Defendant from
his earning. There was a partition in the family on 05.07.2000 and after
the partition, suit property was in possession and enjoyment of the 1st
Defendant. In respect of the suit property, the 1st Defendant had executed
a settlement deed on 20.06.2011 in faovur of the 3rd Defendant and
allowed the 3rd Defendant to enjoy the property. Plaintiff is a drunkard
and compelled his parents to give the property to him. When the
Defendants 1 and 2 went to hospital, Plaintiff forcibly occupied the suit
property and drove the Defendants 1 and 2 out of the house. He had also
taken the original documents of the suit property from the house.
Suppressing all these facts the suit was filed.
5. On the basis of the above pleadings, the trial Court framed the
following issues for consideration:
“1.Whether the settlement deed dated 20.06.2011 executed
by the 1st defendant in favour of the 3rd defendant is not
valid and genuine, is correct?
2.Whether the plaintiff is entitled for the suit property?
3.Whether the plaintiff is entitled for the relief of
permanent injunction as prayed for?
4.To what other reliefs if any, the plaintiff is entitled for?”
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S.A.No.806 of 2021
6.During the trial before the trial Court PW1 to 3 were examined
on the side of the Appellant/Plaintiff. DW1 and 2 were examined on the
side of the 1st Respondent/3rd Defendant and Exs.A.1 to A.13 and Ex.B.1
to B.7 were marked. On considering the oral and documentary evidence
produced before the trial Court, the learned trial Judge found that the
Appellant/Plaintiff is not entitled for any of the reliefs claimed and
dismissed the Suit with costs. Challenging the said judgment and decree
of the trial Court, the Appellant has preferred an Appeal in A.S.No.3 of
2019 on the file of the Subordinate Judge, Kangayam. Learned
Subordinate Judge on hearing the submissions of the learned counsel
appearing on behalf of the parties and after going through the oral and
documentary evidence produced in the case found no reason to differ
with the judgment of the learned trial Judge and dismissed the Appeal.
Therefore the Second Appeal.
7.Heard the learned counsel for the Appellant and perused the
records.
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S.A.No.806 of 2021
8.It is the submission of the learned counsel for the Appellant that
when the property was purchased, his father was an aged man and he had
no income on his own to purchase the property. On the other side, the
Appellant was an able bodied person and working in a Baniyan company.
He was earning sufficient income to meet the regular family expenses
and purchase the suit property. The Suit property was purchased in his
father's name for the reason that he want to pay respect to his father and
that he is the eldest member of the family. As already stated this
contention of the appellant is denied and disputed by the 1 st Respondent.
What we have to consider now is whether the Appellant purchased the
suit property in his father's name with his income is proved or not. From
the finding recorded by the trial Court after going through the evidence,
it is seen that the Appellant/Plaintiff has failed to establish the fact that
he has got adequate income to purchase the suit property in his father's
name. It is observed that he has not produced a scrap of paper to prove
his case, rather he admitted that he has no document to show his income
and expenditure. It is also admitted by the appellant that his father
earned sufficient income from agriculture and he performed 1st
respondent/3rd Defendant's marriage. It is also noted in the judgment of
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S.A.No.806 of 2021
the trial Court that alleged benami transaction in favour of his father
cannot be entertained as per Sections 3 & 4 of the Benami Transactions
(Prohibition) Act,1988. Sections 3 & 4 of the Benami Transactions
(Prohibition) Act,1988 read as hereunder:
“3. Prohibition of benami transactions:
(1) No person shall enter into any benami transaction.
* * * * *
[(2)] Whoever enters into any benami transaction shall be
punishable with imprisonment for a term which may extend to
three years or with fine or with both.
[(3) Whoever enters into any benami transaction on and after
the date of commencement of the Benami Transactions
(Prohibition) Amendment Act, 2016 (43 of 2016) shall,
notwithstanding anything contained in sub-section (2), be
punishable in accordance with the provisions contained in
Chaper VII]
5 * * * * * * * *
4. Prohibition of the right to recover property held
benami:
(1) No suit, claim or action to enforce any right
in respect of any property held benami against the
person in whose name the property is held or
against any other person shall lie by or on behalf of
a person claiming to be the real ownerof such
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S.A.No.806 of 2021
property.
(2) No defence based on any right in respect of
any property held benami, whether against the
person in whose name the property is held or against
any other person, shall be allowed in any suit, claim
or action by or on behalf of a person claiming to be
the real owner of such property.”
Thus, it is clear from these sections that no person shall enter into
any benami transaction and no suit, claim or action to enforce any right
in respect of any property held benami shall lie.
9.The learned Appellate Judge also found from the evidence that
the Appellant gave a complaint to the police through Ex.A7 on
26.08.2013, subsequent to the filing of the suit. In which the appellant
has claimed ½ share in the suit property, thereby appellant admitted that
his father is the owner of the property. There is absolutely no evidence
produced by the appellant to show that he contributed the money for the
purchase of the suit property in his father's name and therefore, this
Court finds no reason to interfere with the findings of the Courts below
that the Appellant has failed to establish that he contributed money for
the purchase of the suit property in his father's name.
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S.A.No.806 of 2021
10.Learned counsel for the Appellant submitted that the appellant
is in possession and enjoyment of the property and that is admitted by the
1st Respondent. Even in the written statement, the possession of the
appellant in the suit property is admitted but it is claimed that it is a
forcible possession taken by the Appellant. When there is no legal claim
to the title of the suit property, on the basis of forcible possession of the
suit property, appellant cannot claim any right.
11.Thus this Court is of the considered view that there is no
substantial questions of law involved for adjudication in this case and
this Second Appeal has no merits. Accordingly, the Second Appeal is
dismissed. No costs.
12.11.2021
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
sai
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S.A.No.806 of 2021
G.CHANDRASEKHARAN, J.
sai
To
The learned Subordinate Judge,
Kangayam,
Tiruppur District.
S.A.No.806 of 2021
Dated: 12.11.2021
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