## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH**
**FRIDAY, THE 19TH DAY OF OCTOBER 2012/27TH ASWINA 1934**
## **RSA.NO. 1276 OF 2012 ()**
**-----------------------------------AS.3/2010 OF THIRD ADDITIONAL DISTRICT COURT, KOZHIKODE OS.735/1993 OF THE THIRD ADDITIONAL SUB JUDGE, KOZHIKODE**
## **APPELLANT/APPELLANT/DEFEDANT:**
**-------------------------------------------------------**
**NANGANADATH PULPARAMBIL BALAN, AGED 84 YEARS, S/O.AYYAPPUTTY, CHEVAYOOR AMSOM DESOM, KOZHIKODE TALUK AND DISTRICT.**
**BY ADVS.SRI.N.M.MADHU SMT.C.S.RAJANI**
## **RESPONDENTS/PLAINTIFF & DEFENDANTS 2 AND 3:**
**---------------------------------------------------------------------------**
**1. CHERORAMANNIL LEELA, AGED 79 YEARS, W/O.GOVINDAN, KONOTTU, KUNNAMANGALAM KURUVATTUR AMSOM, KONOTTU DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT 673 001.**
**2. NANGANADATH PULPARAMBIL SANKARAN, AGED 69 YEARS, S/O.AYYAPPUTTY, C/O.M.K. ASOKAN, KARE ELIVATER INDIA LIMITED, PADMA JUNCTION, CHITTOOR ROAD, KOCHI - 682 035.**
**3. NANGANADATH PULPARAMBIL SOMAN, AGED 67 YEARS, S/O.ATTAPPUTTY, MATHA AMRITHANANDAMAYI MADOM, AMRITHAPURI, ATHINAD, KOLLAM - 690 542.**
## **BY ADV. SRI.V.V.SURENDRAN(CAVEATOR) R1**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **THOMAS P.JOSEPH, J.**
**==================================== R.S.A. No.1276 of 2012 ==================================== Dated this the 19[th] day of October, 2012 J U D G M E N T**
A litigation over an item of property which stood in the name of the mother, started in the year 1993 with the daughter filing a suit for partition is lingering even now along the corridors of this Court. It is the second time that the matter has come to this Court, now in the form of a Second Appeal and earlier, in the form of an appeal from order which was allowed by way of remand with a direction to the trail court to consider whether the appellant-1[st] defendant has paid the consideration for acquisition of the property in the name of his mother, whether the explanation to Section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988 is available to the the appellant and to enable the parties adduce further evidence regarding the above.
2. After remand the parties adduced further evidence. The trial court found against the plea raised by the appellant that he had purchased the property, benami, in the name of his mother and consequently ordered partition. That was confirmed
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by the first appellate court in A.S. No.3 of 2010. That judgment and decree are under challenge in this Second Appeal.
3. It is contended by the learned counsel for the appellant that in deciding whether the purchase was benami, the court is to consider the totality of circumstances. According to the learned counsel, circumstance suggesting that the purchase was made by the appellant in favour of his mother, available in the case was not considered by the courts below. It is pointed out that the suit was filed about four decades after the death of the mother, Exts.B1 and B2 and the receipts for payment of revenue produced by the appellant from 1959 and 1969 respectively (for the land and building) and the fact that appellant is in exclusive possession and enjoyment of the property are sufficient to hold that the purchase was made by the appellant in the name of his mother, benami.
4. I have heard the learned counsel who appeared for the 1[st] respondent-plaintiff as well.
5. Exhibit A1 is the assignment deed dated 18.02.1947 in favour of Devaki, the mother. It concerns the suit property. It is the case of the appellant that he mortgaged the property to one Cherutty, his employer on the date of Ext.A1 itself and raised the
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funds for purchase of the property. He discharged the mortgage liability. Exhibit B1 is the mortgage deed dated 27.02.1947. Exhibit B2 is the registered receipt dated 24.11.1955 produced by the appellant to show that he has discharged the liability under the mortgage. Various documents are also produced by the appellant to show that he has been residing in the building in the suit property since long paying tax for the building and revenue for the land.
6. Exhibit B1 is the mortgage deed. It is revealed from Ext.B2 that a sum of Rs.25/- was paid by the appellant being the last installment of the mortgage money. The courts below found that from Ext.B2 alone no inference is possible either that the appellant mortgaged the property or that he discharged the entire mortgage liability. Exhibit B2 only revealed that the appellant paid the last installment of Rs.25/-. Exhibit B2 was issued after the death of Devaki. In Ext.B2, the appellant is described as the legal heir of Devaki. Devaki could not have made the payment then. Necessarily the payment was made by a legal heir of her. The courts below also observed that during the time of Exts.A1 and B1, the husband of Devaki was employed while there is no reliable evidence to show that the appellant was employed. The
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courts below also observed that it is unlikely that the appellant who, then was aged just below 20 years mortgaged the property. The appellant as D.W.1 admitted that no document would show that he raised and paid the sale consideration and further that it was paid by his mother, Devaki.
7. A further fact the courts below noticed is that the mortgage in favour of the Kerala Financial Corporation as per Ext.B6 was admittedly after the death of the mother. The suit property and another 8 cents belonging to the appellant were mortgaged to the KFC. It is admitted and Ext.B6 proves that the mortgage was created by all the legal heirs of Devaki jointly. No doubt, the appellant has an explanation that it has been so done since otherwise the mortgage would not be accepted by the KFC which granted the loan. In the light of Ext.B6, the appellant cannot turn round and contend that other legal heirs of Devaki have no right over the suit property.
8. A further fact noticed by the courts below is Ext.A5, the reply notice (allegedly) sent on behalf of the appellant. There, it is stated that the suit property belonged to the appellant and others.
9. No doubt, regarding Ext.A5 also the appellant has an
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explanation – he denied that he caused such a reply notice to be issued. Exhibit A5 is issued by an Advocate on behalf of the appellant. When a lawyer issues a notice on behalf of his client, the presumption is that it is under instructions from him.
(See _**Kittunni Gupthan v. Kuttikrishna Gupthan -**_ 1963 KLT 926). The appellant has not examined the lawyer concerned to show that Ext.A5, reply notice was issued not as per his instruction. In such a situation, mere denial made by the appellant cannot be accepted.
10. Yet another consideration to decide whether the transaction is benami or not is the motive. According to the appellant, he had to take the property in the name of his mother since he was engaged in politics during the relevant time. The courts below said that the mere fact that the appellant was a politician (even if it is so) did not disable him from acquiring property and hence that explanation of the appellant cannot be taken as a motive for allegedly acquiring the property in the name of mother. The first appellate court pointed out that at any rate, the appellant being aged below 20 years could not have been a politician of that much stature to avoid purchase of the suit property in his name.
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11. Yet another circumstance that dissuaded the courts below from accepting the plea of benami is that the original assignment deed in favour of Devaki, the mother (Ext.A1) was produced by the 1[st] respondent. Assuming that the appellant was in possession of the property, that is not exclusive possession as if he was the exclusive owner. That possession can only be on behalf of all the legal heirs. The legal heirs must be taken as in constructive possession of the property so far as there is no evidence of their ouster. In that view of the matter, the mere fact of appellant paying revenue for the land and tax for the building would not clothe him with exclusive right over the property. The payments were on behalf of all the legal heirs. That the suit for partition was instituted a few years after the death of the mother by itself would not justify the conclusion that the appellant purchased the suit property in the name of his mother. The appellant was not able to show that the purchase was benami.
12. It is in the light of the above circumstance the courts below found against the plea of benami raised by the appellant. A plea of benami is primarily one of fact. The finding on fact is based on the evidence on record and involves no substantial
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question of law.
The Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
## **THOMAS P. JOSEPH, JUDGE.**
vsv
