Madras High Court
Kannan vs Balakrishnan on 7 February, 2022
S.A.No.958of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.02.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.958 of 2016
Kannan ... Plaintiff /
Appellant
Vs.
1.Balakrishnan
2.Latha ... Defendants /
Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree in A.S. No.13 of 2014 dated
19.01.2015 on the file of the Sub-Judge, Chidambaram, by confirming the
Judgment and Decree in O.S.No.165 of 2006 dated 21.10.2013 on the file
of the District Munsif & Judicial Magistrate, kattumannarkovil.
For Appellant : Mr.J.Ram
For Respondents : Mr.A.Muthu Kumar
1/6
https://www.mhc.tn.gov.in/judis
S.A.No.958of 2016
JUDGMENT
The plaintiff is the appellant in the Second Appeal. The plaintiff
filed suit for the relief of declaration to declare that the suit properties
were purchased by the defendants through the funds provided by the
plaintiff and the plaintiff had also sought for the relief of execution of
deed of conveyance in his favour and for possession of the suit properties.
2.The case of the plaintiff is that he was employed abroad from
the year 1992 and he was drawing sufficient salary. The first defendant is
the brother of the plaintiff and the second defendant is the wife of the first
defendant. According to the plaintiff, he used to regularly send money to
the first defendant and had instructed the first defendant to purchase
properties. It is the further case of the plaintiff that between the period
from 1992 till 2002, he had handed over a sum of Rs.1,50,000/- (One Lakh
Fifty Thousand Rupees) to the first defendant to purchase lands and house
sites in the name of the plaintiff.
https://www.mhc.tn.gov.in/judis
S.A.No.958of 2016
3.The grievance of the plaintiff is that the defendants had
misused the confidence reposed on them and misappropriated the money
and purchased the suit properties in the name of the first defendant and
thereafter, the property was settled by the first defendant in favour of the
second defendant. Aggrieved by the same, the present suit was filed
seeking for various reliefs against the defendants.
4.The defendants filed a written statement and entirely denied
the claim made by the plaintiff. According to the defendants, they had
source of income and they had purchased the suit properties out of their
own money and therefore according to the defendants, the claim made by
the plaintiff is unsustainable.
5.Both the Courts below came to a categoric conclusion that the
plaintiff has not proved the fact that the suit properties were purchased by
the defendants only out of the money that was sent by the plaintiff. The
Courts below held that the plaintiff failed to discharge the onus of proof
and accordingly both the Courts rejected the claim made by the plaintiff.
Aggrieved by the same, the present Second Appeal has been filed before
https://www.mhc.tn.gov.in/judis
S.A.No.958of 2016
this Court.
6.This Court heard the counsel appearing on either side and
carefully perused the materials available on record.
7.A careful reading of the judgment passed by both the Courts
below shows that the plaintiff has not established the fact that the suit
properties were purchased only out of the sum of Rs.1,50,000/-(One Lakh
Fifty Thousand Rupees) sent by the plaintiff to the first defendant. What
the plaintiff had claimed is directly hit by the provisions of the Benami
Transactions (Prohibition) Act. However, the plaintiff has attempted to
bring this case within the exception under Section 4(3) (b) of the Act by
stating that there is a fiduciary relationship between the parties. However
the Courts below on appreciation of the oral and documentary evidence,
have found that there is no material to substantiate that the first defendant
had received a sum of Rs.1,50,000/-(One Lakh Fifty Thousand Rupees)
between the period from 1992 to 2002. It seems that some settlement was
attempted during the pendency of the suit and the first defendant paid a
sum of Rs.40,000 (Forty Thousand Rupees) to the plaintiff. This
https://www.mhc.tn.gov.in/judis
S.A.No.958of 2016
development does not in any way help the case of the plaintiff since it took
place subsequent to the filing of the suit and such settlement of money can
never have a bearing while deciding the case on merits.
8.In the considered view of this Court, there are no substantial
questions of law involved in the present Second Appeal. In the absence of
the same, this Court cannot reappreciate the evidence and such exercise
will go beyond the scope of Section 100 of the Code of Civil Procedure.
9.In the result, the Second Appeal stands dismissed.
Considering the facts and circumstances of the case there shall be no
orders as to costs.
07.02.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
Jeni/Nti
https://www.mhc.tn.gov.in/judis
S.A.No.958of 2016
N. ANAND VENKATESH, J.
Jeni/Nti
To
1. The Sub-Judge, Chidambaram.
2.The District Munsif & Judicial Magistrate,
kattumannarkovil.
Copy To:-
The Section Officer
VR Section, High Court Madras.
S.A.No.958 of 2016
07.02.2022
https://www.mhc.tn.gov.in/judis
