Madras High Court
G.S.Balasubramaniam vs Rathinam @ Rathinammal (Died) on 19 September, 2025
THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on : 09 .09.2025 Judgment pronounced on : 19.09.2025
CORAM
THE HON'BLE MR. JUSTICE P.B.BALAJI
A.S.No.726 of 2023
& CMP.Nos.25221 of 2023 & 24966 of 2024
G.K.Senniappan (Died)
G.S.Balasubramaniam ..Appellant
Vs.
Rathinam @ Rathinammal (Died)
1.Mallika
2.G.S.Padmajothi
3.R.Parameswari
4.G.Karunakaran ..Respondents
Prayer: Appeal Suit filed under Order XLI Rule 1 r/w Section 96 of CPC, to
set aside the judgment and decree dated 28.08.2023 made in O.S.No.268 of
2007 on the file of the III Additional District court, Gobichettipalayam, by
allowing this appeal suit.
For Appellant : Mr.N.Manoharan
For Respondents : Mr.P.V.Ramachandran for RR1 to 3
Mr.K.Vasanthanayagan
for Mr.J.Ranjithkumar for R4
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JUDGMENT
This Appeal Suit has been filed against the judgment and decree dated
28.08.2023 made in O.S.No.268 of 2007 on the file of the III Additional
District Court, Gobichettipalayam.
2.The 2nd plaintiff in O.S.No.No.268 of 2007 before the III Additional
District Court, Gobichettipalayam, is the appellant herein.
3.The suit was filed for declaration of title of the 1st plaintiff, who
subsequently died and consequent to his demise, the 2nd plaintiff, the present
appellant was impleaded. Post impleadment, the prayer for declaration was
amended to declare the title of the 2nd plaintiff. A relief of permanent injunction
to restrain the defendants 2 to 5 from interfering with the plaintiffs' peacefully
possession and enjoyment of the suit property was also prayed.
4.The gist of the case of the plaintiffs is as follows:
(i) The 1st plaintiff is the husband of the 1st defendant. The defendants 2
to 4 are the daughters of the 1st plaintiff and the 1st defendant. The 5th defendant
is the son of a predeceased daughter of the 1st plaintiff. There was a house site
in Natham S.F.No.148 in Cutchery Street, Gobichettipalayam, which belonged
to K.A.Subramanyan and K.Rathinasabapathy. A small tiled house was
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constructed on the eastern side of the house site. The 1st plaintiff purchased the
entire site with the tiled house from the said K.A.Subramanyan and
K.Rathinasabapathy in his name. The western half however was purchased in
the name of the wife of the 1st plaintiff, namely the 1st defendant.
(ii) According to the plaintiffs, the 1st defendant was only a benamidar of
the 1st plaintiff and the entire sale consideration was provided out of the funds
of the 1st plaintiff alone. It is the further case of the 1st plaintiff that his wife had
no funds of her own. The 1st plaintiff has further contended that he was in
money lending business and in view of the risk of landing in loss, the 1 st
plaintiff did not want to lose his assets and therefore, on the safer side, he has
purchased the western half in the name of his wife, the 1st defendant.
(iii) It is also the case of the 1st plaintiff that in 1998, the small tiled
house was demolished and a two storey building was constructed, covering
both the eastern and western half. The 1st plaintiff has spent Rs.30 lakhs out of
his own funds for putting up the construction and the 1st defendant, his wife did
not contribute even a single rupee. Even in the new building, for all 16
portions, the electricity service connections were obtained in the name of the 1st
plaintiff. The 1st plaintiff has leased out various portions of the building and he
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has been collecting rents and also paying property taxes. The 1st plaintiff has
further contended that he has been affectionate towards all the defendants and
the 5th defendant has, in fact, married the daughter of the 2nd plaintiff and the 1st
plaintiff has set up a jewelery shop for the 5th defendant, by mortgaging the suit
property. It is also contended that the original Sale Deed dated 04.09.1995 is
with the Bank.
(iv) The 1st plaintiff also contends that his wife was taken away by his
daughters and the son of the predeceased daughter of the 1st plaintiff and on
25.09.2006, the property has been settled by the 1st defendant, in favour of the
defendants 2 to 5. According to the 1st plaintiff, the defendants have played a
fraud and brought about the settlement deed, without the 1st defendant knowing
the consequences of her action. It is also the case of the 1st plaintiff that
possession was not handed over to the settlees and they did not claim rents
from tenants for nearly eight months and there was also no request for
attornment of tenancy.
(v) On 15.05.2007, for the first time, the defendants claimed title to the
suit property and demanded rents from the tenants. The tenants approached the
1st plaintiff and the 1st plaintiff assured them that the 1st defendant was only a
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benamidar and they need not worry. In view of the cloud on title, the 1st
plaintiff has been constrained to seek declaration of his title and also to protect
his possession. Hence, the suit came to be instituted. As already discussed
above, pending the suit, the 1st plaintiff died and his son, the 2nd plaintiff, on
whom the 1st plaintiff has settled the property on 20.01.2011, came to be
impleaded as the 2nd plaintiff in the suit.
(vi) The defendants were initially set ex-parte and the 1st defendant / wife
also expired and the defendants 2 to 5 were brought on record as legal heirs. An
application was also filed to set aside the ex-parte decree and written statement
was filed by the 5th defendant and the same was adopted by the defendants 2 to
4. The ex-parte decree dated 15.04.2008 was set aside.
5.The written statement filed by the 5th defendant, in brief:-
The 1st plaintiff did not purchase the property as benami in his wife's
name. The allegation that the 1st defendant had no income of her own has been
denied. The allegation that the 1st defendant did not even contribute for
construction is also denied. The mutation of revenue records was in the name of
the 1st defendant, insofar as her acquisition of the property.
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6.Subsequently, the 2nd defendant filed an additional written statement,
which is set out briefly:-
The 2nd defendant contended that the suit is barred under the provisions
of the Benami Transactions (Prohibition) Act, 1988. The 1st defendant had
inherited substantial properties from her mother, including 300 sovereigns of
gold. The property has not been purchased benami as contended. The plaintiffs
have not challenged the issuance of patta and also mutation of revenue records
in the name of the 1st defendant and subsequently in the name of the defendants
2 to 5, post settlement deed executed by the 1st defendant in favour of the
defendants 2 to 5.
7.Based on the above pleadings, the Trial Court has framed the following
issues and additional issues:
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8.On the side of the plaintiffs, the 2nd plaintiff examined himself as P.W.1
and the relative of the parties, by name, Velliangiri has been examined as
P.W.2. One of the tenants, Thirumoorthy has been examined as P.W.3. The 2nd
plaintiff has marked 26 exhibits on his side (Ex.P1 to Ex.P26). On the side of
the defendants, the 2nd defendant, Mallikamani, herself examined as D.W.1, the
3rd defendant, Karunakaran, examined himself as D.W.2 and one Jayakumar
was examined as D.W.3. On the side of the defendants, 12 documents have
been exhibited, namely Ex.D1 to Ex.D12.
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9.I have heard Mr.N.Manoharan, learned counsel for the appellant and
Mr.P.V.Ramachandran, learned counsel for the the respondents 1 to 3 and
Mr.K.Vasanthanayagam, learned counsel for Mr.J.Ranjithkumar, learned
counsel for the 4th respondent. I have gone through the pleadings, oral and
documentary evidence as well as the judgment and decree of the Trial Court.
10.Mr.N.Manoharan, learned counsel for the appellant took me through
the plaint averments and allegations and also the written statement that was
filed initially by the 5th defendant and adopted by the defendants 1 to 4. With
specific reference to the said written statement, Mr.N.Manoharan, would
contend that excepting for denying the plaint allegations and averments, the
defendants have not set up any defence whatsoever at the earliest instance and
only in the additional written statement, the 2nd defendant has chosen to raise a
semblance of defence. He would also take me through the exhibits filed on the
side of the both the parties as well as the oral evidence.
11.Referring to the cross-examination of P.W.1, the 2nd plaintiff as well
as D.W.1 and D.W.2, Mr.N.Manoharan would contend that it has come out in
evidence that both the 1st plaintiff and the 1st defendant were living together
under one roof, when the suit property was purchased. It is also come out in
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evidence that both the eastern and western halves were clubbed as one property
and the existing tiled roof structure was demolished and a new building,
comprising of ground + two floors has been constructed over both the eastern
and western half, after getting necessary planning permission from the local
authority. Referring to the electricity service connections in the name of the 1st
plaintiff and also the caution deposit to the Electricity Board having been paid
by the 1st plaintiff under Ex.P13 to P23 and A24, Mr.N.Manoharan would
contend that the husband had clearly treated the property as his own and there
was unimpeachable evidence, which has not even been dented in cross-
examination of the defendants.
12.Mr.N.Manoharan, learned counsel would also rely on the cross-
examination of D.W.1, the 2nd defendant, who has stated that though the 5th
defendant married the 2nd plaintiff's daughter, the marriage was not a happy
marriage and divorce proceedings also came to be initiated before the Family
Court, Erode. He would therefore, relying on the said evidence of D.W.1,
contend that the matrimonial discord has been the actual root cause for the
defendants to have claimed right in the suit property, objecting to the rightful
purchase of the property by their father in the name of their mother. He would
also state that all the six tests for establishing that it was a benami purchase, as
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laid down by the Hon'ble Supreme Court in Valliammal (D) by LRs Vs.
Subramaniam and others, reported in (2004) 7 SCC 233, have been fully met
and proved beyond all reasonable doubt by the plaintiffs, but however, the Trial
Court has proceeded to non suit the appellant on the ground of presumptions,
conjunctures and surmises.
13.Pointing out to the property devolved upon the 1st defendant through
her mother, Mr.N.Manoharan would contend that the grandmother was alive at
the time of purchase of the suit property and inheritance by the 1st defendant
from her mother was much later and had no bearing on the acquisition of the
suit property. He would therefore state that the findings of the Trial Court are
clearly perverse and liable to be interfered with. He would also rely on the
decision of the Hon'ble Supreme Court in Jaydayal Poddar (Deceased)
through LR's and another Vs. Bibi Hazra and others, reported in (1974) 1 SCC
3, and Nand Kishore Mehra Vs. Sushla Mehar, reported in 1995 (4) SCC 572,
apart from Valliammal's case, referred herein supra.
14.Mr.N.Manoharan would also contend that the defendants have not
placed any piece of evidence, oral and documentary, to establish that the source
for purchase of the property came from the 1st defendant or even to the effect
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that the 1st defendant had any independent income of her own. He would further
state that the 1st plaintiff, even in the plaint, had clearly pleaded about the
motive for purchase the property in the name of the 1 st defendant, his wife and
the appellant has rebutted the presumption under Section 3(2)(a) of the Benami
Transactions (Prohibition) Act, 1988. The property was acquired in the year
1995, but the mother of the 1st defendant died much later only in the year 2004
and therefore, inheritance was would have been only after 2004 and had no
bearing with regard to the acquisition of the suit property. He would therefore
state that the appellant has discharged the burden cast upon the appellant, the
2nd plaintiff before the Trial Court and the appellant is entitled to a declaration
that the purchase made by the 1st plaintiff in the name of the 1st defendant was
only a benami transaction.
15.Per contra, Mr.P.V.Ramachandran, learned counsel for the
respondents 1 to 3 would contend that the factum of the 2nd plaintiff's daughter
having married the 5th defendant, who is the son of a predeceased daughter of
the 1st plaintiff and the 1st defendant had nothing to do with the dispute.
Pointing out to the sale deed and mutation of revenue records, learned counsel
would contend that admittedly it was only in the name of the 1st defendant. He
would further point out that the burden of proof was entirely on the 2nd
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plaintiff/appellant to establish that the suit property was purchased benami in
the name of the 1st plaintiff's wife, by the 1st plaintiff/husband and the 2nd
plaintiff has miserably failed to discharge the said burden of proof, which lay
very heavily on the appellant/2nd plaintiff.
16.Mr.P.V.Ramachandran, learned counsel would refer to cross
examination of P.W.1 and point out to the admissions made by P.W.1, the
appellant, where the appellant clearly states that he has not filed any documents
to establish that the 1st plaintiff, his father, had paid the monies for purchase of
the property and also for putting up the construction. He would also state that
there is no infirmity in the findings of the Trial Court, taking note of the
admissions of P.W.1 with regard to the 1st defendant being the only daughter of
late Devayammal and that substantial movable and immovable properties
belonging to his grandmother devolved on his mother, the 1st defendant.
17.Mr.P.V.Ramachandran, learned counsel would also refer to the
admission of P.W.1 with regard to his mother, holding a locker in State Bank of
India and referring to the said admissions, he would contend that P.W.1's
evidence was sufficient to negate the plaint allegations that the 1st defendant
had no independent source of income. He would also state that income tax
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returns have also not been filed to establish that the 1st plaintiff alone expended
monies for acquisition of the suit property and also for putting up construction.
He would also state that the Trial Court has rightly drawn adverse inference for
non production of the income tax returns by the appellant, despite being
confronted about the same in cross examination.
18.Referring to Section 4 of the Benami Transactions (Prohibition) Act,
1988, Mr.P.V.Ramachandran, learned counsel would contend that it is not open
to the appellant to enforce any right as against the 1st defendant alleging that the
property was purchased benami in her name, by the 1st plaintiff. He would also
refer to Ex.D1, partition deed, between the 1st plaintiff and the 2nd plaintiff,
where the properties have been partitioned between the father and the son and
pointing to non-inclusion of the suit property in the said partition deed,
Mr.P.V.Ramachandran, learned counsel would contend that only because the
plaintiffs were fully conscious of the fact that the property was the absolute
property of the 1st defendant, it has not been rightly included in the said
partition deed, Ex.D1.
19.Mr.P.V.Ramachandran, learned counsel, also inviting my attention to
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Ex.A3, settlement deed, in and whereby, the 1st defendant has settled the suit
property in favour of the defendants 2 to 5, would contend that apart from the
suit property, the said settlement deed was also concerning other items of the
properties, which have been dealt with by the defendants 2 to 5 to third parties
by way of sale under Exs.D10 and D11 and the same has not been questioned
by the appellant, which also is admitted to by P.W.1 in cross examination. He
would also place reliance on the decision of the Hon'ble Supreme Court in
Mithilesh Kumari and another Vs. Prem Behari Kahre, reported in 1989 2 SCC
95, where the Hon'ble Supreme Court has held that there is even a bar of filing
of the suit on the basis that the property has been purchased benami.
20.Mr.P.V.Ramachandran, learned counsel would also point out to the
mortgage of the suit property and the document lying with the Bank, as
contended in the plaint and state that under Ex.D7, a publication was issued in a
leading Tamil daily (Dinamalar) which clearly establishes that, it was only the
1st defendant who had mortgaged the suit property and not the 1 st plaintiff and
therefore, viewed from any angle, the appellant has miserably failed to establish
that the purchase would come under the exception provided under Section 4 of
the Benami Transactions (Prohibition) Act, 1988.
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21.I have carefully considered the submissions advanced by the learned
counsel on either side.
22.On consideration of the pleadings, issues framed, decision rendered
thereon by the Trial Court and the arguments advanced before me in this
Appeal Suit, I frame the following points for consideration:
Whether the suit property was purchased by the 1st
plaintiff/husband in the name of his wife, the 1st defendant,
benami.
23.The relationship between the parties is admitted. In the plaint
originally filed by the husband, the 1st plaintiff, contends that his wife had no
independent source of income and the entire money for purchase of the suit
property was from and out of the funds of the 1st plaintiff. He also contends that
when the old tiled building in his adjoining property, which is not subject
matter of the present suit or appeal, was demolished, both the properties
purchased in his name as well as his wife's name were combined as one plot
and a new and single construction was put up on both the plots. Admittedly,
even according to the appellant, the mutation of revenue records is only in the
name of the 1st defendant. It is however contended by the appellant that because
the sale deeds stands in the name of the 1st defendant/wife, the mutation of
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revenue records was effected in the name of the 1st defendant.
24.The Hon'ble Supreme Court has held that the following six
circumstances can be taken as a guide to determine the nature of transaction:
(i) the source from which the purchase money came;
(ii) the nature and possession of the property, after the
purchase;
(iii) motive, if any, for giving the transaction a benami
colour;
(iv) the position of the parties and the relationship, if
any, between the claimant and the alleged benamidar;
(v) the custody of the title deeds after the sale; and
(vi) the conduct of the parties concerned in dealing with
the property after the sale.
No doubt, the Hon'ble Supreme Court has also held that the above indicia
are only illustrative and not exhaustive, but nevertheless, the source from where
the purchase money came and the motive, if any, would be the most important
tests for determining, whether the transaction was a benami transaction or not.
25.Keeping the above determinative factors in mind, I proceed to decide
the above point for consideration that has been formulated.
26.As regards the source of funds, though there is a pleading available on
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the side of the plaintiffs that the entire source of money for the purchase of the
property came from the 1st plaintiff, husband, and that, his wife, the 1st
defendant was only a name lender, excepting for the self serving averment in
the plaint, the plaintiffs have not been able to adduce any satisfactory evidence
during trial of the suit. In cross examination of P.W.1, the appellant, he
categorically admits that no documents have been filed to substantiate the
averments in the plaint that the sale consideration was paid only by his father.
In fact, the appellant has also admitted that the income tax returns would
definitely lend support to such claim. However, he did not take any steps to
produce the income tax records of his deceased father, the 1st plaintiff.
27.No doubt, as rightly contended by the learned counsel for the
appellant, the findings of the Trial Court that the 1st defendant was possessed of
sufficient income to purchase the property, may not be correct, in the light of
the fact that her mother was very much alive in 1995, when the suit property
was acquired and it was much later in the year 2004 when she died and
thereupon, by inheritance, all her valuable properties came to be inherited by
the 1st defendant. Therefore, the reliance placed on the huge assets belonging to
the mother of the 1st defendant was actually of no consequences. However, at
the same time, it is settled law that in a case where the plaintiffs plead a
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transaction to be a benami transaction, the burden in very heavy on the
plaintiffs who alleges so, because there is a presumption in law that the person
in whose name the property stands is the owner of the same. In order to
dislodge this legal presumption, mere pleadings would not be sufficient. The
plaintiff has to prove by oral and documentary evidence that the person in
whose name, the property has been purchased is not the actual owner.
Therefore, even the first determinative factor, namely source of funds has not
been proved by the appellant in the present case. There is no necessity for the
defendants to establish that the 1st defendant had independent source of income
to acquire the suit property. At the risk repetition, when the burden is entirely
on the plaintiffs to establish the same, even in the absence of any evidence on
the side of the defendants, the plaintiffs cannot succeed, unless they plaintiffs
discharge such heavy burden, which is on the plaintiffs' shoulders to establish
that the purchase was actually a benami transaction.
28.Even with regard to the property having been dealt with subsequent to
the purchase, admittedly, the 1st plaintiff and the 1st defendant were living in the
same property together and therefore nothing turns on this factor as well.
29.Even as regards custody of the original document, it is contended by
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the 1st plaintiff in the plaint that he had set up a jewelery shop for the 5th
defendant, his son-in-law and in that connection, he had given the original sale
deed, pertaining to the suit property, to the Bank. However, it is seen from
Ex.D7, paper publication preceding the mortgage, it is only the 1st defendant
who has taken steps and there is nothing on record to show that it was the 1 st
plaintiff who gave the original document to the Bank. Therefore, even on this
ground, the plaintiffs have miserably failed to establish that it was the 1 st
plaintiff who had custody of the original Sale Deed.
30.The other contention of the learned counsel for the appellant that the
property was let out by the 1st plaintiff and 16 electricity service connections
were obtained in the name of the 1st plaintiff, it is not uncommon for the
husband entering into the lease agreements in respect of joint property
belonging to the husband and wife. Admittedly, even according to the
plaintiffs, a new building has been constructed over both the plots belonging to
the 1st plaintiff as well as the 1st defendant. Merely because electricity service
connections have been taken in the name of the 1st plaintiff, it is not strong
enough evidence to establish a benami transaction. Even tenants of a property
are entitled to take electricity service connections in their names. Therefore, the
mere fact that the 1st plaintiff has taken 16 electricity service connections in his
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name is not sufficient to hold that the property was purchased benami.
31.As regards conduct of the parties, subsequent to purchase, as already
discussed, the parties have been in joint possession. Though it is contended by
Mr.P.V.Ramachandran, learned counsel for the respondents 1 to 3 that Ex.D1,
partition deed, did not include the suit property, I am unable to countenance the
said argument for the simple reason that admittedly the suit property has been
settled by the 1st plaintiff in favour of the 2nd plaintiff, his son. The partition
deed, that has been entered into between the father and the son would only
pertain to joint properties or Hindu undivided family properties and therefore, I
do not see the non-inclusion of the suit property in Ex.D1 being a ground to
turn down the plaintiffs' case. However, the fact that apart from the suit
property, other properties have also been settled by the mother on the daughters
and such other properties have been dealt with by the daughters, the same has
not been questioned at any point of time. If really the plaintiffs were bent upon
establishing that the suit property was the property of the 1 st plaintiff, then the
settlement deed ought to have been challenged and even the sale in favour of
the third parties, in respect of other items of the property, covered under the
very same settlement deed have also gone unchallenged.
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32.Even with regard to motive for purchase, though the 1st plaintiff, in
the plaint, had originally pleaded that since he is doing business in money
lending and there is risk of loss and he wanted to save the property and
therefore, he proceeded to purchase one half of the property in his wife's name,
there is absolutely nothing to substantiate the said motive which have been
pleaded in the plaint. In fact, on the contrary, the appellant, who was examined
as P.W.1, categorically states that the suit property was purchased in the name
of the 1st defendant, his mother for her benefit. This admission of the appellant
virtually demolishes the case set up that the suit property was purchased benami
in the name of the 1st defendant.
33.In fact, the Hon'ble Supreme Court, in Valliammal's case, has held
that the intention of parties would be the essence of benami transaction and
money must have been provided by the party invoking the doctrine of benami.
Even in the said case before the Hon'ble Supreme Court, the Hon'ble Supreme
Court found that the evidence clearly showed that the original plaintiff did not
have any justification for purchasing the property in the name of the alleged
benami holder and that the source of money was also not traceable to the
plaintiff.
34.In Jaydayal's case as well, the above six tests were discussed by the
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Hon'ble Supreme Court and the Hon'ble Supreme Court held that the burden of
proving that the sale was a benami transaction would always rest on the person
asserting it to be so and that the burden has to be strictly discharged by
adducing legal evidence of a definite character, which could either directly
prove the fact of benami or establish circumstances unerringly and reasonably
raising an inference of that fact. The Hon'ble Supreme Court in fact held that
the intention for entering into a benami transaction is always shrouded in a
thick veil which cannot be easily pierced, but still such difficulties do not
relieve the person asserting the transaction to be benami, of any part of the
serious onus that rests on him; nor justify, acceptance of mere conjectures or
surmises, as substitute for proof. The said ratio would squarely apply to the
facts of the present case. Excepting for pleading that the source for purchase
came from the 1st plaintiff and setting up a theory of motive in the plaint, there
is absolutely no evidence adduced by the appellant to establish the fact that the
source of money for purchase of the suit property came only from the 1 st
plaintiff.
35.In Mithilesh Kumari's case, the Hon'ble Supreme Court held that law
nullifies the defences available to the real owner in recovering benami property
from the benanidar and that the law would apply irrespective of time of the
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benami transaction. However, the issue that arose before the Hon'ble Supreme
Court in the said case was whether the Benami Transactions (Prohibition) Act,
1988, would be applicable to an appeal pending on the date of commencement
of the Act. I do not see how this decision would be of any assistance in the
present case, since admittedly the suit property was purchased subsequent to
the Benami Transactions (Prohibition) Act coming into force in the year 1988
and therefore, it is for the plaintiffs alone to discharge the heavy burden on
them, which they have miserably failed to, as discussed herein above. I do not
find that the findings of the Trial Court are perverse, improper or illegal,
warranting interference in this appeal. Accordingly, the point framed for
consideration in this appeal is answered against the appellant and in favour of
the respondents.
36.In fine, the Appeal Suit is dismissed. Considering the relationship
between the parties, there shall be no order as to costs. Connected Civil
Miscellaneous Petitions are closed.
19.09.2025
Neutral Citation Case : Yes / No
Speaking / Non-speaking order
Index : Yes/No
ata
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P.B.BALAJI.J,
ata
To
The III Additional District Court, Gobichettipayalam.
Pre-delivery judgment made in
& CMP.Nos.25221 of 2023 & 24966 of 2024
19.09.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/09/2025 08:10:51 pm )
