Benami plea when available ? ; Admissions in Earlier suit whether admissible ? ;Hindu Succession Act

Benami plea when available ?- in the absence of pleadings and evidence that 'purchase in the name of wife or unmarried daughter is not intended to confer any benefit on the person in whose name document was obtained'. it can not be said that the husband is the owner but not wife though holds register document in her favour as Benami for her husband before commencement of Benami Prohibition Act - the document was that of 1933 much earlier to the Act - Benami Plea can be raised but mere pleading and evidence that his father purchased the properties in the name of  first wife is not sufficient to bring the properties of partition - Burden lies on the plaintiff who claims that it is a Benami for real owner but his evidence is silent as to whether Rama Swamy obtained documents in the name of Narasamma without intending to confer any benefit on her.  ;

Admissions in Earlier suit whether admissible ? - Section 21  and 115 of the Act of 1872. -admissions may be proved as against the person who makes them or his representatives in interest.  - Admissions though not conclusive proof, they estopped the person who made such admissions or representatives in interest in view of Section 31 of the Act of 1872. - At the same time, judicial admissions need not be proved by adducing any evidence in view of Section 58 of the Act of 1872.-If for any reason the plaintiff is allowed to deny the truth in the statement or declaration of Rama Swamy, it amounts to encouraging concealment of truth. - Hence, by applying the principle of estoppel, the plaintiff is debarred from disputing the earlier statement made by his father Rama Swamy.;
 Hindu Succession Act - first wife children Two in number and her husband are equally entitled to 1/3 rd share each - in the said 1/3 rd of father children of first wife and second wife are all entitled to equal shares for each family.Therefore, the plaintiff is entitled to 1/21st share; defendant Nos. 11 to 15, being legal-heirs of the deceased 1st defendant, are entitled to 1/3rd share + 1/21st share i.e. 8/21st share; defendant Nos. 2 to 6, being legal-heirs of the deceased Kishan Rao, are entitled to 1/3rd share + 1/21st share i.e. 8/21st share and defendant Nos. 7 to 10 are entitled to 1/21st share each.  Since the 7th defendant is also died, the plaintiff and defendant Nos. 8 to 10 are entitled to 1/4th share each in the 1/21st share of the 7th defendant i.e. 1/84th share each.  Thereby, the plaintiff is entitled to 5/84th share i.e. 1/21st +1/84th share; defendant Nos.2 to 6 are entitled to 32/84th share; defendant Nos. 8 to 10 are entitled to 5/84th share each and defendant Nos. 11 to 15 are entitled to 32/84th share in A and B schedule property;-2015 Telangana & A.P. msklawreports

 The plaintiff,
defendant Nos. 8 to 10 are children of Rama Swamy and the 7th defendant while
Kishan Rao and the 1st defendant are sons of Rama Swamy and his first wife
Narasamma.  These facts are not disputed.
 Admittedly, vacant site at Himayat
Nagar (A schedule property) was registered in the name of Narasamma, first
wife of Rama Swamy, under the original of Ex.B3 (Ex.B4 is translation copy of
Ex.B3) but no registered sale deed pertaining to purchase of B schedule property
was produced before the trial Court except relying on Ex.B1 i.e. certified copy
of judgment in A.S.No. 95 of 1968 whereas the contention of the plaintiff is that
the property was purchased by Rama Swamy in the name of his first wife
Narasamma.
The specific plea in para No. 2 of the plaint is required to be
adverted to find out the exact plea of the plaintiff and it is extracted
hereunder for better appreciation:
"Late G. Ramaswamy during his life time acquired two immovable properties two
plots of land in the name of his first wife Smt. Narsamma.  Smt. Narsamma died
in the year 1945 Ramswamy then was working in P.W.D. and constructed with
his earnings the compound wall and the structures, which bear Municipal No.
13-2-371, and piece of open land admeasuring 1000 sq. yards situated at
Dhoolpet, Hyderabad and another at Himayatnagar now bearing and covered
M.C.H.No. 3-6-596 on land admeasuring about 980 sq. yards."
      The specific plea extracted above would indicate that Rama Swamy
purchased the property in the name of his first wife Narasamma but it is not
clear
whether Rama Swamy purchased the property in the name of Narasamma to  
confer any benefit on her or as a benamidar for Rama Swamy and the plaint
does not disclose anything about reasons for obtaining sale deeds in the name
of Narasamma while paying consideration by Rama Swamy. 
On close analysis
of para No. 2 and other paras of the plaint, the plea of the plaintiff is that
the transaction is benami or nominal or sham transaction.
Purchase of property in
the name of wife is not totally prohibited under the Benami Transactions
(Prohibition) Act, 1988 (for brevity, 'the Act of 1988'). 
However, the Act of
1988 has no retrospective effect since it operates only prospective.  ]
Since the
property was purchased in the years 1933 and 1936 itself, the provisions of the Act of
1988 have no application to these transactions. 
 The trial Court, on
appreciation of evidence, recorded a finding that Narasamma is only a registered owner but
Rama Swamy is the real owner.  
The said finding is now challenged before this Court on various grounds referred supra

In view of the law declared by
Apex Court in Nand Kishore Mehra  judgment, plea of benami is available to claim right or defence.
 However, burden is upon such
person, who is claiming such right, to prove that 'purchase in the name of wife
or unmarried daughter is not intended to confer any benefit on the person
in whose name document was obtained'.
Therefore, the plaintiff is entitled to
raise plea of benami even according to the provisions of the Act of 1988.  In
fact, the provisions of the Act of 1988 have no application to the present facts of
the case for the reason that the transactions were entered long prior to
commencement of the Act of 1988.
Therefore, the plaintiff is entitled to
contend that the sale transactions are benami transactions and Narasamma is only
benamidar but subject to proving that the sale deeds were not obtained in the
name of Narasamma without intending to confer any benefit on her.
On analysis
of the plaint, there is no whisper in the entire plaint that the documents were
obtained not intending to confer any benefit on Narasamma except contending
that Rama Swamy purchased the property in the name of Narasamma while
working as an employee in P.W.D.

   In Jaydayal Poddar (deceased) , the
Apex Court laid down certain tests to decide the nature of a transaction and
ruled as follows:
 "It is well settled that the burden of proving that a particular sale is benami
and the apparent purchaser is not the real owner, always rests on the person asserting
it to be so.
This burden has to be strictly discharged by adducing legal evidence of a
definite character which would either directly prove the fact of benami or establish
circumstances, unerringly and reasonably raising an inference of that fact.
The
essence of a benami is the intention of the party or parties concerned; and not unoften
such intention is shrouded in a thick veil which cannot be easily pierced through.
But 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 the acceptance of mere
conjectures or surmises, as a substitute for proof.
The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs."

Section 21 of the Act of 1872.

"Admissions are relevant and may be proved as against the person who makes
them, or his representative in interest; but they cannot be proved by or on
behalf of the person who makes them or "by his representative in interest", except in
the following cases:-
(1)     An admission may be proved by or on behalf of the person making it,
when it is of such a nature that, if the person making it were dead, it
would be relevant as between third persons under Section 32.
(2)     An admission may be proved by or on behalf of the person making it,
when it consists of a statement of the existence of any state of mind or
body, relevant or in issue, made at or about the time when such state of
mind or body existed, and is accompanied by conduct rendering its
falsehood improbable.
(3)     An admission may be proved by or on behalf of the person making it, if it
is relevant otherwise than as an admission."
      In view of the plain language of Section 21 of the Act of 1872, 
that admissions may be proved as against the person who makes them or his
representatives in interest.  
In the present case, the plaintiff and defendant
Nos.7 to 10, who are claiming 1/7th share each, are only representatives in interest
of Rama Swamy.
Therefore, the admission made by Rama Swamy can be proved  against the plaintiff and defendant Nos. 7 to 10 as they are representatives in interest.
The word, "representatives in interest", has not been defined in the Act
but evidently means privies.  From the meaning of the word privies, admissions
by persons from whom the parties have derived interest can be said to be
representatives in interest.
The phrase representative in interest means that the person who has derived his title from the author of a statement.
 Admission is of two types; one is judicial admission and the other is
evidentiary admission.  
Admissions though not conclusive proof, they estopped
the person who made such admissions or representatives in interest in view of
Section 31 of the Act of 1872. 
At the same time, judicial admissions need not
be proved by adducing any evidence in view of Section 58 of the Act of 1872.
Whether an admission is evidentiary or judicial, the party who made such
admission if explained under what circumstances he made such admission, the
admission can be ignored.

 In the present case, the deceased Rama Swamy
filed suit along with Kishan Rao and the 1st defendant herein; obtained decree;
contested the matter even in the appeal and got it confirmed.  
Even now, the
plaintiff and defendant Nos. 7 to 10 did not explain under what circumstances
such admission was made except contending that due to claiming share illegally
by brothers of Rama Swamy, Rama Swamy filed the suit to protect the property
but this explanation is not sufficient to take away the earlier admission made
by Rama Swamy in the first round of litigation with regard to B schedule property.

Applying the principle
laid down in Nagubai Ammal and others (1st supra), it can safely be concluded
that admission made by Rama Swamy is binding on his privies i.e.
representatives in interest, who are the plaintiff and defendant Nos. 7 to 10,
since admission is the best piece of evidence and, unless it is explained, it
can be relied upon in subsequent proceedings.  Even according to Section 31 of the
Act of 1872, though admission is not a conclusive proof, still it estops the
person who made such admission or the representatives in interest of such person who
made such admission.

Section 115 of the Act of 1872 deals with the principle of estoppel.
According to it, when one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be true
and to act upon such belief, neither he nor his representative shall be allowed, in
any suit or proceeding between himself and such person or his representative, to
deny the truth of that thing.  In view of the plain language used under Section
115 of the Act of 1872, even representative in interest of the person who made a
declaration, act or omission, intentionally permitting another person to act
upon such representation, the representative of such person is precluded to dispute
the truth of such statement.
The principle of estoppel is a rule of evidence
whereas the doctrine of res judicata is a rule of procedure. 
 In the instant
case,Rama Swamy, by his declaration or statement, made Kishan Rao and the 1st
defendant herein to believe such declaration or statement; acting upon such
statement or declaration, they claimed right in the property and, thereby, the
plaintiff and defendant Nos. 7 to 10 cannot deny the statement or declaration
made by Rama Swamy in the earlier suit and the appeal.
If for any reason the
plaintiff is allowed to deny the truth in the statement or declaration of Rama
Swamy, it amounts to encouraging concealment of truth.
 Hence, by applying the
principle of estoppel, the plaintiff is debarred from disputing the earlier
statement made by his father Rama Swamy.

the Hindu Succession Act, 1956 (for brevity, 'the Act of 1956'), Section 32 read
with Section 35 of the Indian Succession Act, 1925, would govern the rule of
succession of a Hindu female and, thereby, defendant Nos. 2 to 6 are the legal-
heirs of the deceased Kishan Rao.  Since the property was the absolute property
or exclusive property of Narasamma, defendant Nos. 1 to 6 and 11 to 15
admitted that the plaintiff and defendant Nos. 7 to 10 are entitled to 1/21st
share in the 1/3rd share of Rama Swamy irrespective of the rules governing succession
of property by a female Hindu prior to 1956.  
That apart, under the original of
Ex.B1, Rama Swamy is entitled to 1/3rd share in B schedule property which
attained finality.  If the contention of the plaintiff is accepted, it certainly
amounts to annulling the decree and judgment. 
 In view of Ex.B1 and admissions in
pleadings, irrespective of succession of property of a Hindu female, who died
intestate before commencement of the Act of 1956, I am of the considered view
that the plaintiff and defendant Nos. 7 to 10, along with Kishan Rao and the 1st
defendant, are entitled to 1/7th share each in the 1/3rd share of Rama Swamy.
Therefore, the plaintiff is entitled to 1/21st share; defendant Nos. 11 to 15,
being legal-heirs of the deceased 1st defendant, are entitled to 1/3rd share + 1/21st
share i.e. 8/21st share; defendant Nos. 2 to 6, being legal-heirs of the
deceased Kishan Rao, are entitled to 1/3rd share + 1/21st share i.e. 8/21st share and
defendant Nos. 7 to 10 are entitled to 1/21st share each.  Since the 7th
defendant is also died, the plaintiff and defendant Nos. 8 to 10 are entitled to 1/4th
share each in the 1/21st share of the 7th defendant i.e. 1/84th share each.  Thereby,
the plaintiff is entitled to 5/84th share i.e. 1/21st +1/84th share; defendant Nos.
2 to 6 are entitled to 32/84th share; defendant Nos. 8 to 10 are entitled to 5/84th
share each and defendant Nos. 11 to 15 are entitled to 32/84th share in A and B
schedule property-2015 Telangana & A.P. msklawreports

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