Tehara Begum Died 3 Others vs Shaik Abdul Nabi,Medak Dt 3 Others
2022 Latest Caselaw 6280 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                    CCCA No.65 of 1999

JUDGMENT:

The unsuccessful plaintiff has filed this appeal suit

assailing the judgment and decree dated 27.03.1997 in OS

No.1280 of 1988 on the file of the learned III Additional

Judge, City Civil Court at Secunderabad.

2. The original suit on OS No.1280 of 1988 was

filed by the plaintiff against defendant Nos.1 to 3 for

declaration that the plaintiff is the original owner of the

house bearing No.4-1-188 consisting of one front mulgi

and rear room in the area of 30.94 square yards situated at

Subhash Road, Secunderabad with precise boundaries as

mentioned in the schedule of property (hereinafter referred

to as "suit schedule property") and also for cancellation of

the sale deed document No.53 of 1987 dated 12.01.1987,

consequential injunction restraining the defendants and

their agents from interfering with the possession of the

plaintiff and her children over the suit schedule property.

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3. The trial Court after full length of trial, on

appreciation of the oral and documentary evidence

available on record dismissed the suit of the plaintiff.

Feeling aggrieved by the same, the present appeal is filed.

During pendency of the appeal, the sole appellant/plaintiff

died and her legal heirs were brought on record as

appellant Nos.2 to 4. Similarly, respondent No.2/

defendant No.2 died and his legal representative was

brought on record as respondent No.4.

Pleadings in the plaint and written statement:

4. In brief, the case of the plaintiff is that she is

the legally wedded wife of defendant No.1, out of the

wedlock, she begot three sons and three daughters through

him. The entire family of the plaintiff is living in the said

house and they are dealing with the preparation of solid

sweets and roasted bengal grams, til and dal laddu, patti

etc. They used to sell the commodities in front of the mulgi

in the said premises and used to live in the rear room. The

suit house is purchased with the earnings of the plaintiff

though the name of defendant No.1 as purchaser is

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mentioned in the sale deed dated 29.04.1973 nominally.

The defendant No.1 has taken away gold necklace of the

plaintiff weighing about 4 tulas in the year 1970 and again

in the year 1973. He has taken away the gold ornaments

consisting of ear rings etc., weighing about 3½ tulas from

the plaintiff, sold the same and paid the sale consideration

of Rs.10,500/- and obtained sale deed on 29.04.1973.

Thereafter in the year 1979, the defendant No.1 has

married another woman and started living with her at

Tupran, and in view of the disputes between the plaintiff

and defendant No.1, he has clandestinely executed the sale

deed dated 12.01.1987 in favour of defendants 2 & 3. The

plaintiff has come to know about it only in August 1987.

She has questioned the defendant No.1. The defendant

No.1 has become enimical towards the plaintiff and her

children and he failed to look after them. Thereafter, she

has filed a maintenance case in M.C.No.198 of 1987 on the

file of the Mahila Court-cum-II Additional Chief

Metropolitan Magistrate at Hyderabad. The plaintiff is

continuing her possession over the suit schedule property.

If the sale deed is not cancelled, the plaintiff and her

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children will be deprived of their right in respect of the suit

schedule property. The defendant No.1 appears to have

executed a rental agreement in favour of defendant Nos.2 &

3 with a mala fide intention to harass the plaintiff,

accordingly prayed to decree the suit with costs declaring

the plaintiff as absolute owner of the suit schedule

property and to cancel the sale deed executed by defendant

No.1 in favour of defendants 2 & 3 on 12.01.1987 and also

sought for injunction against the defendants.

5. The first defendant remained absent before the

trial Court and he was set ex parte. The defendants 2 & 3

have filed detailed written statement alleging that they are

the bona fide purchasers of the suit schedule property for a

valuable consideration of Rs.80,000/-. They have

purchased it in good faith. They have taken all necessary

precautions including giving paper publication about their

intention to purchase. Thereafter, the first defendant has

executed the sale deed. The defendants 2 & 3 had no notice

of any kind of claim made by the plaintiff in respect of the

suit schedule property. In fact, as per the rental agreement

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executed by defendant No.1, it was agreed to pay Rs.200/-

per month rent and to vacate by the end of August 1987.

But the defendant No.1 and the plaintiff failed to pay the

rent amount and also failed to vacate the suit schedule

property. The defendants 2 & 3 are entitled for eviction of

defendant No.1. In fact, there is a collusion of the plaintiff

and defendant No.1 and accordingly, defendant No.1

remained ex parte in the original suit. All the documents

that are filed by the plaintiff in support of her claim except

the document executed on 12.01.1987 and the link

document dated 29.04.1973 are all false. The suit is liable

to be dismissed and prayed for dismissal of the suit.

Issues:

6. Basing on the above pleadings, the following

issues were framed by the trial Court:

i) Whether the plaintiff is entitled for the declaration as prayed for?

     ii)    Whether the plaintiff is         entitled for
            cancellation of the sale         deed dated
            12.01.1987?;

     iii)   Whether the plaintiff is entitled            for

consequential injunction as prayed for?

AVR,J CCCA No.65 of 1999

iv) Whether the defendants 2 & 3 are the bona fide purchasers for valid consideration? And

v) To what relief?

Evidence and findings of the trial Court:

7. During trial, on behalf of the plaintiff, she

herself got examined as PW.1, besides examining

independent witness/PW.2 who is the grandson of the

vendor. In all, Exs.A.1 to A.15 are marked on behalf of

plaintiff. Thereupon, on behalf of defendants, DWs.1 to 3

are examined. Exs.B.1 to B.20 documents are marked.

The trial Court upon hearing of both sides and on

appreciation of the entire material available on record

dismissed the suit of the plaintiff holding that the plaintiff

is not entitled for declaration as prayed for. She is also not

entitled for cancellation of the sale deed dated 12.01.1987

and not entitled for consequential injunction as prayed for.

The issue No.4 was also answered holding that defendants

2 & 3 are bona fide purchasers. Feeling aggrieved by the

judgment and decree dated 27.03.1997, the plaintiff has

filed this appeal suit.

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8. Heard learned counsel for the appellant/

plaintiff and the respondents 2 & 3/defendants 2 & 3. The

submissions made on either side have received due

consideration of this Court. The learned counsel for the

appellant also filed written arguments.

9. In the light of the rival contentions and the

material available on record, the following points would

arise for consideration:

i) Whether the plaintiff is entitled for declaration of her title and also for cancellation of registered sale deed dated 12.01.1987 executed by defendant No.1 in favour of defendants 2 & 3 as prayed for?;

ii) Whether the defendants 2 & 3 are bona fide purchasers for valid consideration?

iii) Whether the order impugned is sustainable?

Point Nos.(i) to (iii):

10. Since all the points are inter-related, to avoid

repetition and for the sake of brevity, it is proposed to

answer all the points together as under:

AVR,J CCCA No.65 of 1999

11. The parties are hereinafter referred to as

plaintiff and defendants as arrayed in the original suit.

12. The case of the plaintiff is that, she is the

legally wedded wife of defendant No.1 and out of the

wedlock she gave birth to six children and they were

leading happy marital life. During subsistence of marital

life, in the year 1973 she gave all her gold ornaments

weighing about 7½ tulas and with the sale proceeds of the

same her husband/defendant No.1 has purchased the suit

schedule property as per the sale deed document No.53 of

1987 dated 12.01.1987. The plaintiff along with her

children used to prepare the solid sweets and roasted

bengal gram, til, dal laddu, patti and used to sell all these

commodities in front of the suit mulgi by residing in the

adjoining room. The suit house was purchased for an

amount of Rs.10,500/-. The entire sale consideration was

paid by her, but in the sale deed dated 29.04.1973 the

name of the defendant No.1, husband of the plaintiff No.1

has mentioned as 'purhcaser'. All of sudden on 12.01.1987

the first defendant taking advantage of the fact that the

AVR,J CCCA No.65 of 1999

suit schedule house is standing on his name sold away the

same to the defendants 2 and 3 under registered sale deed.

The plaintiff has come to know about it in August 1987

only, she enquired with the defendant No.1, but in vain.

She has also filed maintenance case claiming maintenance

against the defendant No.1 as such the present suit is filed

for declaration of her title, cancellation of said sale deed

executed by defendant No.1 in favour of defendants 2 & 3

dated 12.01.1987 and for consequential injunction.

13. In support of her claim, the plaintiff herself got

examined as PW.1. In her evidence, Exs.A.1 to A.15

documents are marked. In her oral evidence, the plaintiff

has tried to improve her case stating that in addition to 7½

tulas gold, she has also paid an amount of Rs.2,000/- to

her husband towards sale consideration of the suit house

and the entire sale consideration was only paid by her.

The sale deed as in Ex.A.1 equivalent to Ex.A.15. It is

further stated that the defendant No.1 has executed a

document dated 28.04.1975 giving all his rights in respect

of suit house in favour of the plaintiff. She has further

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stated that she has been in continuous possession and

enjoyment of the suit house and she is paying the property

tax in respect of the same. She has further stated in her

evidence that she purchased the suit schedule property in

the year 1972, whereas according to Exs.A.1 and A.15, it

was obtained on 29.04.1973. She has mentioned that she

gave her gold weighing 7½ tulas and an amount of

Rs.2,000/- to her husband, who converted the gold into

cash and paid the entire sale consideration. This evidence

of payment of additional amount of Rs.2,000/- is an

improvement from the pleadings in the plaint. Though

PW.1 has stated that right from 1973 onwards, she has

been paying the tax, she has only filed Exs.A.9 to A.12

receipts towards payment of property tax. They are dated

23.10.1981, 17.01.1991, 25.02.1983 and 25.03.1989

respectively.

14. All these receipts as indicated above in Exs.A.9

to A.12 only relates to the period from 1981 to 1991.

Ex.A.9 relates to the year 1981. Perusal of the same shows

that tax was paid by the plaintiff. Ex.A.11 relates to the

AVR,J CCCA No.65 of 1999

year 1983 wherein it is mentioned that the municipal tax

was paid by the plaintiff. Whereas, Exs.A.10 and A.12

pertaining to the year 1991 and 1989 respectively, the

amount was paid towards tax by the first defendant alone.

Thus, these documents Exs.A.9 to A.12 are at best can be

said that either the defendant No.1 or the plaintiff on his

behalf paid the tax in the Municipal office. Undisputedly,

the suit schedule property was sold under the original of

Ex.B.1 in favour of defendants 2 & 3 by defendant No.1 in

the year 1981. Subsequent to the said transaction covered

under Ex.B.1 at no point of time, the plaintiff has paid

municipal tax in respect of the suit schedule property.

Exs.A.13 and A.14 are the acknowledgements, wherein it is

found that the first defendant has executed the receipt in

favour of plaintiff acknowledging her gold ornaments.

15. In this context, I may refer to the value of gold

during the relevant period as per Exs.B.11 to B.13, the

price of 24 carat gold in the market was between Rs.291/-

to Rs.320.50 paise for 10 grams. Therefore, even if it is

assumed that the plaintiff has given her entire 7½ tulas of

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gold to the defendant No.1 towards payment of sale price,

viewed from any angle, it will not fetch more than

Rs.2,000/-. Whereas, the sale consideration is Rs.10,500/-

over the suit schedule property. Added to this, defendant

No.1 has also executed a promissory note for an amount of

Rs.2,000/- in favour of his vendors, subsequently, paid the

said amount as in Ex.A.4. There is no other evidence

available on record to show that the plaintiff has paid some

other amounts for purchase of suit schedule property

under the original of Ex.A.1.

16. It is the specific case of plaintiff that in the year

1975 defendant No.1 has married another woman at

Tupran and started living with her. Later on 12.01.1987

the first defendant executed the sale deed in respect of suit

house in favour of defendants 2 & 3. Be it stated that the

plaintiff has examined PW.2, who is claiming to be

attesting witness to Ex.A.1 equivalent to Ex.A.15. His

evidence does not inspire any confidence. He is the

grandson of vendor under Ex.A.1. This witness stated that

the plaintiff's son is his friend, he came to the Court to give

AVR,J CCCA No.65 of 1999

evidence at his instance. Though in the chief examination

he has stated about the sale of gold and jewelry by the

plaintiff for payment of sale consideration, in the cross-

examination this witness stated that he does not know to

whom the jewelry of the plaintiff was sold and what was

the amount procured by selling the gold ornaments. He

fairly admitted that since the plaintiff's son is his friend

and at his instance, though he deposed about disposal of

jewelry and he does not know when it was sold.

17. Similarly, PW.2 has stated that he does not

know when PW.1 has sold the suit house to the defendants

2 & 3. He has admitted that DW.1 is having agricultural

lands and he was also getting income from the lands

situated at Tupran and he never saw the defendants 1 & 2

consuming liquor at Balesha compound. Therefore, viewed

from any angle, the evidence of PW.2 is not helpful to the

plaintiff either to show that he was attestor of Ex.A.1 or

that the plaintiff has paid the entire sale consideration for

purchase of the suit house by selling her gold ornaments

or by procuring from other source.

AVR,J CCCA No.65 of 1999

18. Thus, on careful appreciation of the evidence of

PWs.1 & 2, it is crystal clear that throughout her evidence

the plaintiff as PW.1 has tried to improve her case from

time to time. Though she has pleaded in the plaint that

the suit house was purchased in the year 1973, in her

evidence she has stated that it was purchased in the year

1972, which is not a fact. Again she has stated that apart

7½ tulas of gold she has paid Rs.2,000/- to her husband

and that he has converted the gold into cash and paid the

entire sale consideration. There is no proof to the effect of

payment of Rs.2,000/- in cash. That apart, as per

Exs.B.11 to B.13 in the year 1972-73 the entire gold of 7½

tulas would not fetch more than Rs.2,000/-. She has

claimed that from 1973 onwards she has been paying

property tax, but Exs.A.9 to A.11 would only show that

subsequent to Ex.B.1 in the year 1987 the property tax

was paid by her in the name of defendant No.1 and there is

no proof to show that from 1973 onwards she has been

paying property tax in respect of suit schedule property on

her name, besides paying electricity and water charges.

AVR,J CCCA No.65 of 1999

19. PW.1 further stated that when she raised a

dispute with her husband regarding the second marriage

the document dated 28.04.1975 was executed by him,

giving up his right in respect of suit schedule property in

her favour. This evidence by itself would clinchingly

establish that defendant No.1 was having right in respect

of suit schedule property and accordingly he gave up his

right. But no such document is filed to the effect that the

defendant No.1 has executed any such deed or document

dated 28.04.1975. Finally, it may be stated that there is

no document filed by the plaintiff stating that her husband

has given up his right, share or interest in respect of suit

schedule property. All the documents as in Exs.A.1 to A.15

would only reflect that it is the defendant No.1, who has

purchased the suit property from the grandfather of PW.2

for a valid consideration on 29.04.1973 and it is he who

has also executed a promissory note as in Ex.A.4

undertaking to repay the said amount of Rs.2,000/-

towards part of sale consideration. In such circumstances,

the evidence of PWs.1 & 2 and the contents of Exs.A.1 to

A.15 do not inspire any confidence to hold that the plaintiff

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was in exclusive possession as absolute owner of suit

schedule property and entitled for declaration of her title

and cancellation of Ex.B.1 dated 12.01.1987 said to be

executed by defendant No.1 in favour of defendants 2 & 3.

20. On behalf of the defendants, the second

defendant got examined as DW.1, one of the attestors of

Ex.B.1 is examined as DW.2 and independent witness, who

has a barber in the locality, is examined as DW.3. In all,

Exs.B.1 to B.20 documents are marked on behalf of the

defendants.

21. Ex.B.1 is the registered sale deed in question

which was sought to be cancelled by the plaintiff. Exs.B.2

and B.3 are the receipts for payment of sale consideration.

These two receipts were executed by defendant No.1 in

favour of defendants 2 & 3. Ex.B.4 is the original rental

agreement executed by defendant No.1 in favour of

defendants 2 & 3 agreeing to vacate the suit schedule

premises after execution of the registered sale deed.

Ex.B.5 is the original sale deed dated 29.04.1973. The

certified copies of the same are filed by the plaintiff as in

AVR,J CCCA No.65 of 1999

Ex.A.1 and A.15. Exs.B.6 and 7 are other link documents.

Exs.B.11 to B.13 are the paper publication of Hindu daily

newspaper in proof of price of gold in the bullion market

during the relevant period in the year 1972-73 and it was

roughly between Rs.290/- to Rs.320.50 paise per tula.

Exs.B.14 to B.20 are the counter foils of the receipts in

proof of payment of rent from January 1987 to August

1987.

22. The oral and documentary evidence adduced on

behalf of defendants would establish that defendants 2 & 3

have obtained Ex.B.1 sale deed from defendant No.1 for a

valid consideration. On receipt of sale price, he has

executed receipts under Exs.B.2 and B.3. Subsequent to

the execution of Ex.B.1-sale deed, possession was not

delivered, as such Ex.B.4 rental agreement was executed

agreeing to vacate the suit schedule premises after August

1987, but failed to execute the same.

23. The plaintiff has filed the original suit for

declaration of title and for cancellation of Ex.B.1-sale deed.

In a suit of declaration of title, the burden is always on the

AVR,J CCCA No.65 of 1999

plaintiff to make out and establish a clear case for granting

such relief and weakness, if any of the case set by the

defendant would not be a ground to grant the relief in

favour of the plaintiff. If the plaintiffs are to succeed in a

suit for declaration, they must do so on the strength of

their own title [Union of India and others Vs. Vasavi

Cooperative Housing Society Limited and others1).

24. Exs.A.1 and A.15 and the original of Ex.B.5 are

the sale deeds under which the plaintiff is claiming her title

and possession. Be it stated that the said document is on

the name of defendant No.1. Though the plaintiff has

claimed that she has paid the entire sale consideration, she

is not able to prove the same. On the other hand, the

evidence adduced on behalf of plaintiff itself is sufficient to

show that defendant No.1 has paid the sale consideration,

also executed the pro-note as in Ex.A.4 for balance sale

consideration and subsequently paid the said amount.

Though the plaintiff has claimed that she has been paying

the property tax right from 1973 onwards i.e., from the

(2014) 2 SCC 269

AVR,J CCCA No.65 of 1999

date of Ex.A.1, there is no such proof to that effect as to

payment of property tax from 1973 to 1981.

25. Whether a particular sale is Benami transaction

or not is largely one of the fact and for determining the

question, no absolute formula or acid test is laid, uniformly

applicable in all the situations. Therefore, in weighing

probabilities and gathering the relevant indications, the

Courts are generally guided by the following factors.

i) The source from which the purchase money came;

ii) The nature and possession of the property, after purchase;

iii) The 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 deed after the sale;

and

vi) Conduct of the parties concerned in dealing with the property after the sale.

26. Here in the case on hand, though the plaintiff

has claimed that she has paid the entire sale

AVR,J CCCA No.65 of 1999

consideration, as stated supra, if the gold of 7½ tulas

alleged to have been given by her to her husband is

converted into cash during the relevant period, it would not

fetch more than Rs.2,000/-. But as per Ex.A.1, the sale

price is mentioned as Rs.10,500/-. On the other hand,

there is evidence on record to show that defendant No.1

has paid the sale price and also towards payment of

balance sale consideration executed a pro-note. The

original of Ex.A.1 was only in the custody of defendant

No.1. Though the plaintiff has claimed that she gave it to

her husband in the year 1980, the evidence on this aspect

is not reliable. In fact, subsequent to the execution of

Ex.B.1, the original of Ex.A.1 was handed over to

defendants 2 and 3. Though the plaintiff has claimed

payment of property tax as stated supra, no such receipts

are filed for payment of tax right from 1973 till 1981.

27. All these circumstances would lead to one and

the only irresistible conclusion that the plaintiff has failed

to establish her claim in respect of suit schedule property

and she is not entitled to take the plea of benami

AVR,J CCCA No.65 of 1999

transaction in the absence of such cogent and convincing

evidence. That apart, the law is well settled that the

operation of Benami Transactions (Prohibition) Act, 1988 is

not retrospective and it does not apply to the pending suits

which were already filed prior to the Act coming into force

[R. Rajagopala Reddy (dead) by LRs Vs. Padmini

Chandrasekharan (dead) by LRs2].

28. Therefore, viewed from any angle, the appellant

/plaintiff has failed to establish her title in respect of suit

schedule property. Whereas, defendant No.1 as an owner

of the property has executed Ex.B.1 sale deed in favour of

defendants 2 and 3 for a valid consideration. The evidence

adduced on behalf of defendants clinches the issue

showing that they have taken required precautions and

also notice was got published inviting the objections, if any

in respect of the said sale transaction. Therefore, in my

considered opinion, there is no infirmity or irregularity in

the appreciation of evidence and findings recorded by the

trial Court and such findings do not warrant any

(1995) 2 SCC 630

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interference by this Court. Accordingly, point Nos.(i) to (iii)

are answered in favour of the respondent/defendants and

against the appellant/plaintiff holding that the judgment

impugned is sustained.

29. In the result, the appeal suit is dismissed,

confirming the judgment and decree dated 27.03.1997 in

OS No.1280 of 1988 on the file of the learned III Additional

Judge, City Civil Court at Secunderabad. However, in the

circumstances of the case, there shall be no order as to

costs.

As a sequel, miscellaneous applications, if any

pending in this appeal suit, shall stand closed.

_________________________________ A. VENKATESHWARA REDDY, J.

Date: 01.12.2022 Isn