Benami Tansaction – liable for partition – burden lies on whom (1)the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; ( 3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. ”The ancestral property was sold by the Narayanasamy Mudaliar (Exh. A3) was on dated 11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and B7 which are in favour of defendant no.1 were much prior to the sale of the property at Exh. A3. Therefore, also it cannot be said that the suit properties were purchased in the name of defendant no.1 by Narayanasamy Mudaliar from the funds received by selling of the ancestral properties. Even considering the observations made by this Court in paragraph 10 in the case of Om Prakash Sharma (Supra) it can be said that Narayanasamy Mudaliar might have purchased the properties in the name of defendant no.1 in order to provide his wife with a secured life in the event of his death. It is required to be noted that it was the specific case on behalf of the defendant no.1 that the suit properties were purchased by her from the Stridhana and on selling of the jewellery. It is required to be noted that the benami transaction came to be amended in the year 2016. As per Section 3 of the Benami Transaction (Prohibition) Act 1988, there was a presumption that the transaction made in the name of the wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3 (2) of the Benami Transaction Act, 1988 the statutory presumption, which was rebuttable, has been omitted. It is the case on behalf of the respondents that therefore in view of omission of Section 3(2) of the Benami Transaction Act, the plea of statutory transaction that the purchase made in the name of wife or children is for their benefit would not be available in the present case. Aforesaid cannot be accepted. As held by this Court in the case of Binapani Paul (Supra) the Benami Transaction (Prohibition) Act would not be applicable retrospectively. Even otherwise and as observed hereinabove, theplaintiff has miserably failed to discharge his onus to prove that the Sale Deeds executed in favour of defendant no.1 were benami transactions and the same properties were purchased in the name of defendant no.1 by Narayanasamy Mudaliar from the amount received by him from the sale of other ancestral properties. Once it is held that the Sale Deeds in favour of defendant no.1 were not benami transactions, in that case, suit properties, except property nos. 1 and 3, which were purchased in her name and the same can be said to be her self­acquired properties and therefore cannot be said to be Joint Family Properties, the plaintiffs cannot be said to have any share in the suit properties (except property nos. 1 and 3).

CORRECTED
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4805 OF 2019
(ARISING OUT OF SLP (C) NO.29642 OF 2016)
Mangathai Ammal (Died) through
LRs and Others ..Appellant(s)
Versus
Rajeswari & Others ..Respondent(s)
J U D G M E N T
M.R. SHAH, J.

  1. Leave granted.
  2. Feeling aggrieved and dissatisfied with the impugned
    Judgment and Order passed by the High Court of Judicature at
    Madras dated 05.01.2016 passed in AS No.785 of 1992
    dismissing the same and affirming the Judgment and Decree
    dated 05.08.1992 passed by the learned Subordinate Judge, Arni
    1
    in O.S. No.124 of 1990 decreeing the suit for partition by original
    plaintiff, the original defendant nos. 1 to 3 have preferred the
    present appeal.
  3. The facts leading to the present appeal in nutshell are
    as under :
    That, one Rajeswari and Others­original plaintiffs
    instituted a suit bearing O.S. No.124 of 1990 for partition of the
    suit properties and separate possession. It was the case on behalf
    of the plaintiffs that the first defendant is the wife of one
    Narayanasamy Mudaliar. That, the said Narayanasamy Mudaliar
    and original defendant no.1 had one son and three daughters
    namely Elumalai (son), Ranganayaki (daughter), Nagabushanam
    (daughter) and Navaneetham (daughter). That, the son Elumalai
    and daughter Ranganayaki had died. The first plaintiff is the wife
    of Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the
    husband and children of the deceased Ranganayaki. That,
    Elumalai and the first plaintiff did not have issue. According to
    the original plaintiffs, Narayanasamy Mudaliar sold the ancestral
    properties and purchased the suit property in the name of first
    defendant ­ Mangathai Ammal (wife of Narayanasamy Mudaliar).
    2
    Therefore, it was the case on behalf of the plaintiffs that
    Narayanasamy Mudaliar and his son Elumalai are entitled to half
    share of the ancestral properties. That, it was the case on behalf
    of the plaintiffs that the same Narayanasamy Mudaliar had died
    twenty years back to the filing of the suit. His share in the
    properties was inherited by Elumalai, defendant nos. 1 and 2 viz
    Nagabushanam Ammal and Ranganayaki Ammal. That, the
    Ranganayaki died about six years before filing of suit, therefore,
    her legal representatives viz original plaintiff nos.2 to 8 inherited
    her share in the properties. That, the Nagabushanam executed
    the Release Deed dated 24.04.1990 in favour of the first
    defendant. According to the plaintiffs, the first plaintiff is entitled
    to 5/8th share, plaintiff nos. 2 to 8 are entitled to 1/8th share
    and the defendants are entitled to 1/4th share in the suit
    properties. According to the plaintiffs, since the defendant tried
    to claim the suit properties, the plaintiffs filed the present suit for
    partition.
    3.1 The suit was resisted by the defendants. As per the
    case of the first defendant, except item nos. 1 and 3 of the suit
    properties, the other properties are self­acquired properties of the
    3
    first defendant. According to the first defendant, the first item of
    the suit property was purchased out of the money provided by
    her in her name. According to the first defendant, the suit
    properties are not the ancestral properties of Narayanasamy
    Mudaliar. It was denied that the suit properties were purchased
    by selling the ancestral properties. It was the case on behalf of
    the defendant no.1 that except properties in item nos. 1 and 3 of
    Schedule II, the properties were purchased by the defendant no.1
    out of the stridhana she received from her parents’ house and by
    selling the gold jewellery. It was also the case on behalf of
    defendant no.1 that after purchasing the property from
    Thangavel Gounder and others; she constructed a house and is
    in possession and enjoyment of the said property. According to
    the defendant no.1, the deceased Narayanasamy Mudaliar was
    entitled to 47 cents in Survey No. 218/1 and 8 cents in Survey
    No. 218/3 and the deceased Ranganayaki Ammal is entitled to
    1/5th share in the suit properties. It was also the case on behalf
    of the first defendant that, similarly, the first plaintiff’s husband
    is also entitled to 1/5th share, in which, first defendant and first
    plaintiff are entitled to half share in the suit properties. According
    to the first defendant, the first defendant’s daughter
    4
    Nagabhushanam executed a Release Deed in respect of her own
    share. It was also the case on behalf of the first defendant that
    she never acted as a manager of the joint family. According to
    her, she executed a Will dated 11.02.1987 in favour of plaintiff
    nos. 1 and 2 and Nagabhushanam Ammal. However, since the
    beneficiaries of the Will did not take care of the first defendant,
    she revoked the Will on 11.06.1990.
    3.2 Defendant nos. 2 and 3 supported defendant no.1.
    According to defendant nos. 2 and 3, defendant no.1 mortgaged
    the property with defendant no. 3 for a valuable consideration,
    which was also known to the plaintiffs. Defendant nos. 2 and 3
    also adopted the written statement filed by defendant no.1.
    3.3 That the learned Trial Court framed the following
    issues:
    “1) Whether the suit schedule properties are
    ancestral properties of husband of the 1st plaintiff
    namely Elumalai and the deceased
    Narayansamy?
    2) Whether it is true that the 1st defendant had
    managed the suit schedule properties being the
    Manager of the Family?
    3) Whether it is true that the Suit Schedule
    properties are jointly enjoyed by all the family
    members as Joint Family Property?
    5
    4) Whether the plaintiffs are entitled to claim
    partition in view of the Release Deed dated
    24.04.90 executed by Nagabooshanam Ammal?
    5) Whether it is true that the 1st defendant had
    executed a Will on 11.2.87 to and in favour of
    plaintiffs in respect of suit schedule property and
    revoked the said Will on 11.6.90?
    6) Whether it is true that the plaintiffs are in
    joint possession of the suit schedule properties?
    7) Whether the plaintiffs are entitled to get 3/4th
    share over the suit schedule properties?
    8) Whether the present suit is not valued
    properly?
    9) To what relief the plaintiffs are entitled?
    3.4 Before the Trial Court, on the side of the plaintiffs,
    four witnesses were examined and three documents Exh. A1 to
    A3 were marked. On the side of the defendants, two witnesses
    were examined and 19 documents Exh. B1 to B19 were marked.
    That, the learned Trial Court, after taking into consideration the
    oral and documentary evidences of both the sides, passed a
    preliminary decree finding that the plaintiffs are entitled to 3/4th
    share in the suit properties. Feeling aggrieved and dissatisfied
    with the Judgment and Decree passed by the Trial Court, the
    original defendant nos. 1 to 3 preferred appeal before the High
    Court. That, by impugned Judgment and Order, the High Court
    has dismissed the said appeal and has confirmed the Judgment
    6
    and Decree passed by the Trial Court. Feeling aggrieved and
    dissatisfied with the impugned Judgment and Order passed by
    the High Court dismissing the appeal and confirming the
    Judgment and Decree passed by the learned Trial Court, original
    defendant nos.1 to 3 have preferred the present appeal.
  4. Shri V. Prabhakar, learned Counsel has appeared on
    behalf of the appellants­original defendants and Shri G. Balaji,
    learned Counsel has appeared on behalf of the respondentsoriginal plaintiffs.
  5. Shri V. Prabhakar, learned Counsel appearing on
    behalf of the original defendant nos.1 to 3 has vehemently
    submitted that in the facts and circumstances of the case, both,
    the learned Trial Court as well as the High Court have committed
    a grave error in decreeing the suit and holding that the original
    plaintiffs have 3/4th share in the suit properties.
    5.1 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that the suit properties were purchased by defendant
    no.1 out of the stridhana she received from her parents and by
    selling the gold jewellery. It is submitted that, admittedly, the suit
    7
    properties were purchased in the name of original defendant no.1
    and was in possession of defendant no.1. It is submitted
    therefore, the finding that the properties were purchased by
    Narayanasamy Mudaliar is erroneous.
    5.2 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that if it was the case on behalf of the original
    plaintiffs that the properties purchased in the name of defendant
    no.1 were the benami transactions, in that case, the onus is/was
    upon the plaintiffs to prove by leading cogent evidence that the
    transactions were benami transactions. It is submitted that in
    the present case, the plaintiffs have failed to discharge the onus
    to prove that the transactions were benami transactions. It is
    submitted that, both, the Trial Court as well as the High Court
    had erroneously shifted the burden upon the defendants to prove
    that the transactions/Sale Deeds in favour of defendant no.1
    were not benami transactions. It is submitted that the aforesaid
    is contrary to the settled proposition of law laid down by this
    Court.
    8
    5.3 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that in the present case, solely on considering two
    documents, namely, Exh. B3, Sale Deed in respect of one of the
    properties and Exh. B4, the Sale Deed with respect of two
    properties, the Courts below have considered the entire suit
    properties as ancestral properties and/or the same properties
    purchased from the funds raised by selling the ancestral
    properties.
    5.4 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that merely because some consideration or part
    consideration was paid by the husband at the time of purchase of
    property at Exh. B3­Sale Deed and/or merely purchasing the
    stamp papers while purchasing the property at Exh. B4­Sale
    Deed, it cannot be said that the same properties as such were
    purchased from the funds raised by selling the ancestral
    properties and/or the same were purchased for and on behalf of
    joint family.
    9
    5.5 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that both the Courts below have materially erred in
    misinterpreting the Release Deed at Exh. A1. It is submitted that
    both the Courts below have materially erred in holding the suit
    properties as joint family properties of Narayanasamy Mudaliar
    on the ground that execution of Release Deed at Exh. A1 by
    Nagabhushanam on payment of Rs.10,000/­ to Nagabhushanam
    and on such payment Nagabhushanam released her share in the
    property, was good to hold that the properties are the joint family
    properties of Narayanasamy Mudaliar.
    5.6 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that even considering the documentary evidences on
    record, more particularly, Exh. B3 to B7, it can be seen that the
    suit properties were purchased in the name of defendant no.1
    were purchased much prior to the sale of some of the ancestral
    properties of Narayanasamy Mudaliar. It is submitted that,
    therefore, the case on behalf of the plaintiffs that the suit
    properties were purchased in the name of defendant no.1 out of
    10
    the funds raised on selling the ancestral properties of
    Narayanasamy Mudaliar, cannot be accepted. Relying upon
    paragraph 10 of the decision of this Court in the case of Om
    Prakash Sharma v. Rajendra Prasad Shewda, (2015) 15 SCC 556,
    it is submitted by Shri V. Prabhakar, learned Counsel appearing
    on behalf of the appellants that as the transactions/Sale Deeds
    in favour of defendant no.1 were prior to the enactment of the
    Hindu Succession Act and the amendments made thereto from
    time to time, even it can be said that the intention of the
    Narayanasamy Mudaliar to purchase the properties in the name
    of defendant no.1­his wife was in order to provide the wife with a
    secured life in the event of his death.
    5.7 Shri V. Prabhakar, learned Counsel appearing on
    behalf of the appellants­original defendant nos.1 to 3 submitted
    that even otherwise, the plaintiffs have failed to prove by leading
    cogent evidence that the transactions of sale in favour of
    defendant no.1 were benami transactions. It is submitted by Shri
    V. Prabhakar that even in the plaint also there were no specific
    pleadings that the sale transactions of the suit properties in
    favour of defendant no.1 were benami transactions. It is
    11
    submitted that even the learned Trial Court also did not frame
    any specific issue with respect to benami transactions. It is
    submitted that even otherwise on merits also and on considering
    the recent decision of this Court in the case of P. Leelavathi v. V.
    Shankarnarayana Rao (2019) 6 SCALE 112, in which after
    considering the earlier decisions of this Court in the case of
    Jaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC 3; Thakur
    Bhim Singh v. Thakur Kan Singh (1980) 3 SCC 72; Binapani Paul
    v. Pratima Ghosh (2007) 6 SCC 100 and Valliammal v.
    Subramaniam (2004) 7 SCC 233, it cannot be said that the Sale
    Deeds executed in favour of defendant no.1 were benami
    transactions.
    5.8 Making above submissions and relying upon above
    decisions it is prayed to allow the present appeal.
  6. Present appeal is vehemently opposed by Shri G.
    Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs.
    6.1 Shri G. Balaji, learned Counsel appearing on behalf of
    the respondents­original plaintiffs has vehemently submitted that
    on appreciation of entire evidence on record, both, learned Trial
    12
    Court as well as the High Court, have rightly held that the
    transactions of sale in favour of defendant no.1 were benami
    transactions as the said properties were purchased by
    Narayanasamy Mudaliar in the name of defendant no.1 out of the
    funds received from selling the ancestral properties. It is
    submitted that on considering the documentary evidences Exh.
    B3, B4 and even Exh. A1, the High Court has rightly observed
    and held that the transactions/Sale Deeds in favour of defendant
    no.1 were benami transactions and therefore the plaintiffs are
    entitled to 3/4th share in the suit properties which were
    purchased in the name of defendant no.1 but purchased out of
    the funds received from selling the ancestral properties by
    Narayanasamy Mudaliar.
    6.2 It is further submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    that in the present case, all the conditions to prove the
    transactions as benami transactions as laid down by this Court
    in the case of P. Leelavathi (Supra) have been satisfied.
    6.3 It is vehemently submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    13
    that in the present case, even from the intention and conduct of
    the parties it is proved that though the properties were in the
    name of defendant no.1, they were purchased and enjoyed as
    Joint Family Properties. It is submitted that otherwise the
    Nagabhushanam would not have released her share in favour of
    defendant no.1, if the daughter Nagabhushanam had no share. It
    is submitted that execution of the Release Deed by
    Nagabhushanam in favour of defendant no.1 suggests that
    defendant no.1 also considered the share of the daughter
    Nagabhushanam by treating the suit properties as Joint Family
    Properties.
    6.4 It is further submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    that the Will dated 11.02.1987, executed by defendant no.1, also
    included even the properties exclusively belonging to
    Narayanasamy Mudaliar. It is submitted, therefore, the intention
    can be gathered from Exh. B8 and Exh. B9 that the suit
    properties are Joint Family Properties and therefore liable for
    partition and not exclusive properties of defendant no.1.
    14
    6.5 It is further submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    that the suit properties were purchased in the name of defendant
    no.1 during the lifetime of Narayanasamy Mudaliar. It is
    submitted that original defendant no.1 had no independent
    income. It is submitted that Narayanasamy Mudaliar had
    ancestral properties/agricultural lands which were generating
    income and he purchased all the properties in the name of his
    wife­defendant no.1 from the income generated from the
    ancestral properties and by selling some of the ancestral
    properties.
    6.6 It is further submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    that even the statutory presumption which was rebuttable under
    Section 3 (2) of the Benami Transaction Act, 1988 has been
    omitted by Benami Amendment Act of 2016. It is submitted that
    therefore as on date, there is no such statutory presumption that
    the purchase made in the name of wife or children is for their
    benefit.
    15
    6.7 Making above submissions and relying upon above
    decisions it is prayed to dismiss the present appeal.
  7. Heard the learned Counsel appearing on behalf of the
    respective parties at length. We have gone through and
    considered in detail the findings recorded by the learned Trial
    Court as well as the High Court. We have also considered in
    detail the evidences on record both oral as well as documentary.
    7.1 At the outset, it is required to be noted that the
    original plaintiffs instituted the suit before the learned Trial
    Court for partition of the suit properties and claiming 3/4th share
    with the pleadings that the suit properties were ancestral
    properties and that the Narayanasamy Mudaliar has purchased
    the suit properties in the name of his wife­defendant no.1 out of
    the funds derived through selling his share of the property
    acquired through ancestral nucleus to some other person and
    that the suit properties were in absolute possession and
    enjoyment of the Joint Family Property since the date of
    purchase. From the pleadings, it appears that it was not
    specifically pleaded by the plaintiffs that the Sale
    Deeds/transactions in favour of defendant no.1 were benami
    16
    transactions. It was also not pleaded that the suit properties were
    purchased in the name of defendant no.1 by Narayanasamy
    Mudaliar from the income derived out of the ancestral properties.
    Even the learned Trial Court did not specifically frame the issue
    that whether the transactions/Sale Deeds in favour of defendant
    no.1 are benami transactions or not? Despite the above, learned
    Trial Court and the High Court have held that the
    transactions/Sale Deeds in favour of defendant no.1 were benami
    transactions. The aforesaid findings recorded by the Trial Court
    confirmed by the High Court and the consequent relief of
    partition granted in favour of the plaintiffs is the subject matter
    of the present appeal.
  8. While considering the issue involved in the present
    appeal viz. whether the transactions/Sale Deeds in favour of
    defendant no.1 can be said to be benami transactions or not, the
    law on the benami transactions is required to be considered and
    few decisions of this Court on the aforesaid are required to be
    referred to.
    8.1 In the case of Jaydayal Poddar (Supra) it is specifically
    observed and held by this Court that the burden of proving that a
    17
    particular sale is benami and the apparent purchaser is not the
    real owner, always rests on the person asserting it to be sold. It is
    further observed that this burden has to be strictly discharged by
    adducing legal evidence of a definite character which would either
    directly prove the fact of the benami transaction or establish
    circumstances unerringly and reasonably raising an interference
    of that fact. In paragraph 6 of the aforesaid decision, this Court
    has observed and held as under :
    “6. “It is well­settled 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. Though the question whether
    18
    a particular sale is benami or not, is largely one
    of fact, and for determining this question, no
    absolute formulae or acid tests, uniformly
    applicable in all situations, can be laid down; yet
    in weighing the probabilities and for gathering
    the relevant indicia, the courts are usually
    guided by these circumstances:(1) the source
    from which the purchase money came; (2) the
    nature and possession of the property, after the
    purchase; (3) motive, if any, for giving the
    transaction a benami colour; (4) the position of
    the parties and the relationship if any, between
    the claimant and the alleged benamidar; (5) the
    custody of the title deeds after the sale and (6)
    the conduct of the parties concerned in dealing
    with the property after the sale.
    In the case of Thakur Bhim Singh (Supra) this Court in
    paragraph 18 observed and held as under :
    “18. The principle governing the determination of
    the question whether a transfer is a benami
    transaction or not may be summed up thus: (1)
    the burden of showing that a transfer is a
    benami transaction lies on the person who
    asserts that it is such a transaction; (2) it is
    proved that the purchase money came from a
    person other than the person in whose favour the
    property is transferred, the purchase is prima
    facie assumed to be for the benefit of the person
    who supplied the purchase money, unless there
    is evidence to the contrary; (3) the true character
    of the transaction is governed by the intention of
    the person who has contributed the purchase
    money and (4) the question as to what his
    intention was has to be decided on the basis of
    the surrounding circumstances, the relationship
    of the parties, the motives governing their action
    19
    in bringing about the transaction and their
    subsequent conduct, etc.”
    8.2 In the case of P. Leelavathi (Supra) this Court held as
    under :
    “9.2 In Binapani Paul case (Supra), this Court
    again had an occasion to consider the nature of
    benami transactions. After considering a catena
    of decisions of this Court on the point, this Court
    in that judgment observed and held that the
    source of money had never been the sole
    consideration. It is merely one of the relevant
    considerations but not determinative in
    character. This Court ultimately concluded after
    considering its earlier judgment in the case of
    Valliammal v. Subramaniam (2004) 7 SCC 233
    that while considering whether a particular
    transaction is benami in nature, the following six
    circumstances can be taken as a guide:
    “(1) the source from which the purchase money
    came;
    (2) the nature and possession of the property,
    after the purchase;
    (3) motive, if any, for giving the transaction a
    benami colour;
    (4) the position of the parties and the
    relationship, if any, between the claimant and
    the alleged benamidar;
    (5) the custody of the title deeds after the sale;
    and
    20
    (6) the conduct of the parties concerned in
    dealing with the property after the sale.
    (Jaydayal Poddar v. Bibi Hazra (supra), SCC p. 7,
    para6)”
    8.3 After considering the aforesaid decision in the recent
    decision of this Court in the case of P. Leelavathi (Supra), this
    Court has again reiterated that to hold that a particular
    transaction is benami in nature the aforesaid six circumstances
    can be taken as a guide.
    8.4 Applying law laid down by this Court in the aforesaid
    decisions to the facts of the case on hand and the reasoning
    given by the Trial Court confirmed by the High Court, it appears
    that both, the learned Trial Court and the High Court have erred
    in shifting the burden on the defendants to prove that the sale
    transactions were not benami transactions. As held hereinabove
    in fact when the plaintiffs’ claim, though not specifically pleaded
    in the plaint, that the Sale Deeds in respect of suit properties,
    which are in the name of defendant no.1, were benami
    transactions, the plaintiffs have failed to prove, by adducing
    cogent evidence, the intention of the Narayanasamy Mudaliar to
    21
    purchase the suit properties in the name of defendant no.1 – his
    wife.
  9. Even the reasoning and the findings recorded by the
    Trial Court confirmed by the High Court while holding the Sale
    Deeds/transactions in favour of defendant no.1 as benami
    cannot be said to be germane and or fulfilling the circumstances
    as carved out by this Court in the aforesaid decisions.
    9.1 The first reason which is given by the learned Trial
    Court while holding the suit properties as benami transactions is
    that part sale consideration was paid by Narayanasamy Mudaliar
    at the time of the purchase of the property vide Sale Deed Exh.
    B3. As held by this Court in catena of decisions referred to
    hereinabove, the payment of part sale consideration cannot be
    the sole criteria to hold the sale/transaction as benami. While
    considering a particular transaction as benami, the intention of
    the person who contributed the purchase money is determinative
    of the nature of transaction. The intention of the person, who
    contributed the purchase money, has to be decided on the basis
    of the surrounding circumstances; the relationship of the parties;
    the motives governing their action in bringing about the
    22
    transaction and their subsequent conduct etc. It is required to be
    noted that Narayanasamy Mudaliar, who contributed part sale
    consideration by purchasing property at Exh. B3, might have
    contributed being the husband and therefore by mere
    contributing the part sale consideration, it cannot be inferred
    that Sale Deed in favour of the defendant no.1­wife was benami
    transaction and for and at behalf of the joint family. Therefore,
    the Trial Court as well as the High Court have committed a grave
    error in holding the suit properties as benami
    transactions/ancestral properties on the basis of the document
    at Exh. B3.
    9.2 Similarly, merely because of the stamp duty at the
    time of the execution of the Sale Deed at Exh. B4 was purchased
    by Narayanasamy Mudaliar, by that itself it cannot be said that
    the Sale Deed at Exh. B4 in favour of defendant no.1 was benami
    transaction. It is required to be noted that except the aforesaid
    two documentary evidences at Exh. B3 and B4, no other
    documentary evidence/transaction/Sale Deed in favour of
    defendant no.1 have been considered by the learned Trial Court
    and even by the High Court.
    23
    9.3 Now, so far as the findings recorded by the Trial Court
    and the High Court on considering the Release Deed at Exh. A1
    viz. the Release Deed executed by Nagabushanam in favour of
    defendant no. 1 on payment of Rs.10,000/­ and therefore
    inference drawn by the learned Trial Court and the High Court
    that therefore even the defendant no.1 also considered the share
    of the daughter and considered the suit properties as joint family
    properties and therefore plaintiffs have also share in the suit
    properties is concerned, the said finding is just a mis­reading and
    mis­interpretation of the evidence on record. In her deposition,
    defendant no.1 has explained the payment of Rs.10,000/­ to
    Nagabushanam, daughter and the Release Deed executed by her.
    It is specifically stated by her that though she had no share in
    the suit properties, with a view to avoid any further litigation in
    future and to be on safer side, Rs.10,000/­ is paid and the
    Release Deed was got executed by Nagabushanam in favour of
    defendant no.1. Even in the Release Deed at Exh. A1, it is so
    specifically stated. Therefore, merely because to avoid any further
    litigation in future and though Nagabushanam had no share in
    the suit properties, Rs.10,000/­ was paid and the Release Deed
    was got executed in favour of defendant no.1, by that itself, it
    24
    cannot be said that defendant no.1 treated the suit properties as
    ancestral properties and/or Joint Family Properties.
    9.4 Even considering the Will executed by defendant no.1
    dated 11.02.1987 and the subsequent revocation of the Will is
    suggestive of the fact that defendant no.1 all throughout treated
    the suit property as her self­acquired property which according to
    her were purchased from the Stridhana and selling of the
    jewellery.
  10. It is required to be noted that in the plaint the
    plaintiffs came out with the case that the suit properties
    purchased in the name of defendant no.1 by Narayanasamy
    Mudaliar from the funds raised by selling the ancestral properties
    received by him. It was never the case on behalf of the plaintiffs
    that the suit properties were purchased by Narayanasamy
    Mudaliar in the name of defendant no.1 out of the income
    received from the ancestral properties. However, considering the
    date of transactions with respect to the suit properties and the
    ancestral properties sold by Narayanasamy Mudaliar, it can be
    seen that all the suit properties purchased in the name of
    defendant no.1 were much prior to the sale of the ancestral
    25
    properties by Narayanasamy Mudaliar. The ancestral property
    was sold by the Narayanasamy Mudaliar (Exh. A3) 11.11.1951.
    However, the Sale Deeds at Exh. B3, B4, B5, B6 and B7 which
    are in favour of defendant no.1 were much prior to the sale of the
    property at Exh. A3. Therefore, also it cannot be said that the
    suit properties were purchased in the name of defendant no.1 by
    Narayanasamy Mudaliar from the funds received by selling of the
    ancestral properties.
  11. Even considering the observations made by this Court
    in paragraph 10 in the case of Om Prakash Sharma (Supra) it
    can be said that Narayanasamy Mudaliar might have purchased
    the properties in the name of defendant no.1 in order to provide
    his wife with a secured life in the event of his death. It is required
    to be noted that it was the specific case on behalf of the
    defendant no.1 that the suit properties were purchased by her
    from the Stridhana and on selling of the jewellery.
  12. It is required to be noted that the benami transaction
    came to be amended in the year 2016. As per Section 3 of the
    Benami Transaction (Prohibition) Act 1988, there was a
    presumption that the transaction made in the name of the wife
    26
    and children is for their benefit. By Benami Amendment Act,
    2016, Section 3 (2) of the Benami Transaction Act, 1988 the
    statutory presumption, which was rebuttable, has been omitted.
    It is the case on behalf of the respondents that therefore in view
    of omission of Section 3(2) of the Benami Transaction Act, the
    plea of statutory presumption that the purchase made in the
    name of wife or children is for their benefit would not be available
    in the present case. Aforesaid cannot be accepted. As held by this
    Court in the case of Binapani Paul (Supra) the Benami
    Transaction (Prohibition) Act would not be applicable
    retrospectively. Even otherwise and as observed hereinabove, the
    plaintiff has miserably failed to discharge his onus to prove that
    the Sale Deeds executed in favour of defendant no.1 were benami
    transactions and the same properties were purchased in the
    name of defendant no.1 by Narayanasamy Mudaliar from the
    amount received by him from the sale of other ancestral
    properties.
    12.1 Once it is held that the Sale Deeds in favour of
    defendant no.1 were not benami transactions, in that case, suit
    properties, except property nos. 1 and 3, which were purchased
    27
    in her name and the same can be said to be her self­acquired
    properties and therefore cannot be said to be Joint Family
    Properties, the plaintiffs cannot be said to have any share in the
    suit properties (except property nos. 1 and 3). At this stage, it is
    required to be noted that the learned Counsel appearing on
    behalf of defendant no.1 has specifically stated and admitted that
    the suit property Item nos. 1 and 3 can be said to be the
    ancestral properties and according to him even before the High
    Court also it was the case on behalf of the defendant no.1 that
    item nos. 1 and 3 of the suit properties are ancestral properties.
  13. In view of the above and for the reasons stated above,
    the present appeal is partly allowed. The impugned judgement
    and order passed by the High Court as well as the Trial Court
    holding that the plaintiffs have 3/4th share in the suit properties
    (Except Item Nos. 1 and 3 of the suit properties) are hereby
    quashed and set aside. It is observed and held that except Item
    Nos. 1 and 3 of the suit properties, the plaintiffs have no share in
    other suit properties. Preliminary Decree directed to be drawn by
    the learned Trial Court, confirmed by the High Court, is hereby
    28
    directed to be modified accordingly. The present appeal is partly
    allowed to the aforesaid extent. No costs.
    ……………………………….J.
    [L. NAGESWARA RAO]
    New Delhi; ……………………………….J.
    May 09, 2019. [M.R. SHAH]
    29
    Reportable
    IN THE SUPREME COURT OF INDIA
    CIVIL APPELLATE JURISDICTION
    CIVIL APPEAL NO. 4805 OF 2019
    (ARISING OUT OF SLP (C) NO.29642 OF 2016)
    Mangathai Ammal (Died) through
    LRs and Others ..Appellant(s)
    Versus
    Rajeswari & Others ..Respondent(s)
    J U D G M E N T
    M.R. SHAH, J.
  14. Leave granted.
  15. Feeling aggrieved and dissatisfied with the impugned
    Judgment and Order passed by the High Court of Judicature at
    Madras dated 05.01.2016 passed in AS No.785 of 1992
    dismissing the same and affirming the Judgment and Decree
    dated 05.08.1992 passed by the learned Subordinate Judge, Arni
    30
    in O.S. No.124 of 1990 decreeing the suit for partition by original
    plaintiff, the original defendant nos. 1 to 3 have preferred the
    present appeal.
  16. The facts leading to the present appeal in nutshell are
    as under :
    That, one Rajeswari and Others­original plaintiffs
    instituted a suit bearing O.S. No.124 of 1990 for partition of the
    suit properties and separate possession. It was the case on behalf
    of the plaintiffs that the first defendant is the wife of one
    Narayanasamy Mudaliar. That, the said Narayanasamy Mudaliar
    and original defendant no.1 had one son and three daughters
    namely Elumalai (son), Ranganayaki (daughter), Nagabushanam
    (daughter) and Navaneetham (daughter). That, the son Elumalai
    and daughter Ranganayaki had died. The first plaintiff is the wife
    of Elumalai, the second plaintiff and plaintiff nos. 3 to 8 are the
    husband and children of the deceased Ranganayaki. That,
    Elumalai and the first plaintiff did not have issue. According to
    the original plaintiffs, Narayanasamy Mudaliar sold the ancestral
    properties and purchased the suit property in the name of first
    defendant ­ Mangathai Ammal (wife of Narayanasamy Mudaliar).
    31
    Therefore, it was the case on behalf of the plaintiffs that
    Narayanasamy Mudaliar and his son Elumalai are entitled to half
    share of the ancestral properties. That, it was the case on behalf
    of the plaintiffs that the same Narayanasamy Mudaliar had died
    twenty years back to the filing of the suit. His share in the
    properties was inherited by Elumalai, defendant nos. 1 and 2 viz
    Nagabushanam Ammal and Ranganayaki Ammal. That, the
    Ranganayaki died about six years before filing of suit, therefore,
    her legal representatives viz original plaintiff nos.2 to 8 inherited
    her share in the properties. That, the Nagabushanam executed
    the Release Deed dated 24.04.1990 in favour of the first
    defendant. According to the plaintiffs, the first plaintiff is entitled
    to 5/8th share, plaintiff nos. 2 to 8 are entitled to 1/8th share
    and the defendants are entitled to 1/4th share in the suit
    properties. According to the plaintiffs, since the defendant tried
    to claim the suit properties, the plaintiffs filed the present suit for
    partition.
    3.1 The suit was resisted by the defendants. As per the
    case of the first defendant, except item nos. 1 and 3 of the suit
    properties, the other properties are self­acquired properties of the
    32
    first defendant. According to the first defendant, the first item of
    the suit property was purchased out of the money provided by
    her in her name. According to the first defendant, the suit
    properties are not the ancestral properties of Narayanasamy
    Mudaliar. It was denied that the suit properties were purchased
    by selling the ancestral properties. It was the case on behalf of
    the defendant no.1 that except properties in item nos. 1 and 3 of
    Schedule II, the properties were purchased by the defendant no.1
    out of the stridhana she received from her parents’ house and by
    selling the gold jewellery. It was also the case on behalf of
    defendant no.1 that after purchasing the property from
    Thangavel Gounder and others; she constructed a house and is
    in possession and enjoyment of the said property. According to
    the defendant no.1, the deceased Narayanasamy Mudaliar was
    entitled to 47 cents in Survey No. 218/1 and 8 cents in Survey
    No. 218/3 and the deceased Ranganayaki Ammal is entitled to
    1/5th share in the suit properties. It was also the case on behalf
    of the first defendant that, similarly, the first plaintiff’s husband
    is also entitled to 1/5th share, in which, first defendant and first
    plaintiff are entitled to half share in the suit properties. According
    to the first defendant, the first defendant’s daughter
    33
    Nagabhushanam executed a Release Deed in respect of her own
    share. It was also the case on behalf of the first defendant that
    she never acted as a manager of the joint family. According to
    her, she executed a Will dated 11.02.1987 in favour of plaintiff
    nos. 1 and 2 and Nagabhushanam Ammal. However, since the
    beneficiaries of the Will did not take care of the first defendant,
    she revoked the Will on 11.06.1990.
    3.2 Defendant nos. 2 and 3 supported defendant no.1.
    According to defendant nos. 2 and 3, defendant no.1 mortgaged
    the property with defendant no. 3 for a valuable consideration,
    which was also known to the plaintiffs. Defendant nos. 2 and 3
    also adopted the written statement filed by defendant no.1.
    3.3 That the learned Trial Court framed the following
    issues:
    “1) Whether the suit schedule properties are
    ancestral properties of husband of the 1st plaintiff
    namely Elumalai and the deceased
    Narayansamy?
    2) Whether it is true that the 1st defendant had
    managed the suit schedule properties being the
    Manager of the Family?
    3) Whether it is true that the Suit Schedule
    properties are jointly enjoyed by all the family
    members as Joint Family Property?
    34
    4) Whether the plaintiffs are entitled to claim
    partition in view of the Release Deed dated
    24.04.90 executed by Nagabooshanam Ammal?
    5) Whether it is true that the 1st defendant had
    executed a Will on 11.2.87 to and in favour of
    plaintiffs in respect of suit schedule property and
    revoked the said Will on 11.6.90?
    6) Whether it is true that the plaintiffs are in
    joint possession of the suit schedule properties?
    7) Whether the plaintiffs are entitled to get 3/4th
    share over the suit schedule properties?
    8) Whether the present suit is not valued
    properly?
    9) To what relief the plaintiffs are entitled?
    3.4 Before the Trial Court, on the side of the plaintiffs,
    four witnesses were examined and three documents Exh. A1 to
    A3 were marked. On the side of the defendants, two witnesses
    were examined and 19 documents Exh. B1 to B19 were marked.
    That, the learned Trial Court, after taking into consideration the
    oral and documentary evidences of both the sides, passed a
    preliminary decree finding that the plaintiffs are entitled to 3/4th
    share in the suit properties. Feeling aggrieved and dissatisfied
    with the Judgment and Decree passed by the Trial Court, the
    original defendant nos. 1 to 3 preferred appeal before the High
    Court. That, by impugned Judgment and Order, the High Court
    has dismissed the said appeal and has confirmed the Judgment
    35
    and Decree passed by the Trial Court. Feeling aggrieved and
    dissatisfied with the impugned Judgment and Order passed by
    the High Court dismissing the appeal and confirming the
    Judgment and Decree passed by the learned Trial Court, original
    defendant nos.1 to 3 have preferred the present appeal.
  17. Shri V. Prabhakar, learned Counsel has appeared on
    behalf of the appellants­original defendants and Shri G. Balaji,
    learned Counsel has appeared on behalf of the respondentsoriginal plaintiffs.
  18. Shri V. Prabhakar, learned Counsel appearing on
    behalf of the original defendant nos.1 to 3 has vehemently
    submitted that in the facts and circumstances of the case, both,
    the learned Trial Court as well as the High Court have committed
    a grave error in decreeing the suit and holding that the original
    plaintiffs have 3/4th share in the suit properties.
    5.1 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that the suit properties were purchased by defendant
    no.1 out of the stridhana she received from her parents and by
    selling the gold jewellery. It is submitted that, admittedly, the suit
    36
    properties were purchased in the name of original defendant no.1
    and was in possession of defendant no.1. It is submitted
    therefore, the finding that the properties were purchased by
    Narayanasamy Mudaliar is erroneous.
    5.2 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that if it was the case on behalf of the original
    plaintiffs that the properties purchased in the name of defendant
    no.1 were the benami transactions, in that case, the onus is/was
    upon the plaintiffs to prove by leading cogent evidence that the
    transactions were benami transactions. It is submitted that in
    the present case, the plaintiffs have failed to discharge the onus
    to prove that the transactions were benami transactions. It is
    submitted that, both, the Trial Court as well as the High Court
    had erroneously shifted the burden upon the defendants to prove
    that the transactions/Sale Deeds in favour of defendant no.1
    were not benami transactions. It is submitted that the aforesaid
    is contrary to the settled proposition of law laid down by this
    Court.
    37
    5.3 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that in the present case, solely on considering two
    documents, namely, Exh. B3, Sale Deed in respect of one of the
    properties and Exh. B4, the Sale Deed with respect of two
    properties, the Courts below have considered the entire suit
    properties as ancestral properties and/or the same properties
    purchased from the funds raised by selling the ancestral
    properties.
    5.4 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that merely because some consideration or part
    consideration was paid by the husband at the time of purchase of
    property at Exh. B3­Sale Deed and/or merely purchasing the
    stamp papers while purchasing the property at Exh. B4­Sale
    Deed, it cannot be said that the same properties as such were
    purchased from the funds raised by selling the ancestral
    properties and/or the same were purchased for and on behalf of
    joint family.
    38
    5.5 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that both the Courts below have materially erred in
    misinterpreting the Release Deed at Exh. A1. It is submitted that
    both the Courts below have materially erred in holding the suit
    properties as joint family properties of Narayanasamy Mudaliar
    on the ground that execution of Release Deed at Exh. A1 by
    Nagabhushanam on payment of Rs.10,000/­ to Nagabhushanam
    and on such payment Nagabhushanam released her share in the
    property, was good to hold that the properties are the joint family
    properties of Narayanasamy Mudaliar.
    5.6 It is further submitted by Shri V. Prabhakar, learned
    Counsel appearing on behalf of the appellants­original defendant
    nos.1 to 3 that even considering the documentary evidences on
    record, more particularly, Exh. B3 to B7, it can be seen that the
    suit properties were purchased in the name of defendant no.1
    were purchased much prior to the sale of some of the ancestral
    properties of Narayanasamy Mudaliar. It is submitted that,
    therefore, the case on behalf of the plaintiffs that the suit
    properties were purchased in the name of defendant no.1 out of
    39
    the funds raised on selling the ancestral properties of
    Narayanasamy Mudaliar, cannot be accepted. Relying upon
    paragraph 10 of the decision of this Court in the case of Om
    Prakash Sharma v. Rajendra Prasad Shewda, (2015) 15 SCC 556,
    it is submitted by Shri V. Prabhakar, learned Counsel appearing
    on behalf of the appellants that as the transactions/Sale Deeds
    in favour of defendant no.1 were prior to the enactment of the
    Hindu Succession Act and the amendments made thereto from
    time to time, even it can be said that the intention of the
    Narayanasamy Mudaliar to purchase the properties in the name
    of defendant no.1­his wife was in order to provide the wife with a
    secured life in the event of his death.
    5.7 Shri V. Prabhakar, learned Counsel appearing on
    behalf of the appellants­original defendant nos.1 to 3 submitted
    that even otherwise, the plaintiffs have failed to prove by leading
    cogent evidence that the transactions of sale in favour of
    defendant no.1 were benami transactions. It is submitted by Shri
    V. Prabhakar that even in the plaint also there were no specific
    pleadings that the sale transactions of the suit properties in
    favour of defendant no.1 were benami transactions. It is
    40
    submitted that even the learned Trial Court also did not frame
    any specific issue with respect to benami transactions. It is
    submitted that even otherwise on merits also and on considering
    the recent decision of this Court in the case of P. Leelavathi v. V.
    Shankarnarayana Rao (2019) 6 SCALE 112, in which after
    considering the earlier decisions of this Court in the case of
    Jaydayal Poddar v. Bibi Hazra (Mst.) (1974) 1 SCC 3; Thakur
    Bhim Singh v. Thakur Kan Singh (1980) 3 SCC 72; Binapani Paul
    v. Pratima Ghosh (2007) 6 SCC 100 and Valliammal v.
    Subramaniam (2004) 7 SCC 233, it cannot be said that the Sale
    Deeds executed in favour of defendant no.1 were benami
    transactions.
    5.8 Making above submissions and relying upon above
    decisions it is prayed to allow the present appeal.
  19. Present appeal is vehemently opposed by Shri G.
    Balaji, learned Counsel appearing on behalf of the respondentsoriginal plaintiffs.
    6.1 Shri G. Balaji, learned Counsel appearing on behalf of
    the respondents­original plaintiffs has vehemently submitted that
    on appreciation of entire evidence on record, both, learned Trial
    41
    Court as well as the High Court, have rightly held that the
    transactions of sale in favour of defendant no.1 were benami
    transactions as the said properties were purchased by
    Narayanasamy Mudaliar in the name of defendant no.1 out of the
    funds received from selling the ancestral properties. It is
    submitted that on considering the documentary evidences Exh.
    B3, B4 and even Exh. A1, the High Court has rightly observed
    and held that the transactions/Sale Deeds in favour of defendant
    no.1 were benami transactions and therefore the plaintiffs are
    entitled to 3/4th share in the suit properties which were
    purchased in the name of defendant no.1 but purchased out of
    the funds received from selling the ancestral properties by
    Narayanasamy Mudaliar.
    6.2 It is further submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    that in the present case, all the conditions to prove the
    transactions as benami transactions as laid down by this Court
    in the case of P. Leelavathi (Supra) have been satisfied.
    6.3 It is vehemently submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    42
    that in the present case, even from the intention and conduct of
    the parties it is proved that though the properties were in the
    name of defendant no.1, they were purchased and enjoyed as
    Joint Family Properties. It is submitted that otherwise the
    Nagabhushanam would not have released her share in favour of
    defendant no.1, if the daughter Nagabhushanam had no share. It
    is submitted that execution of the Release Deed by
    Nagabhushanam in favour of defendant no.1 suggests that
    defendant no.1 also considered the share of the daughter
    Nagabhushanam by treating the suit properties as Joint Family
    Properties.
    6.4 It is further submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    that the Will dated 11.02.1987, executed by defendant no.1, also
    included even the properties exclusively belonging to
    Narayanasamy Mudaliar. It is submitted, therefore, the intention
    can be gathered from Exh. B8 and Exh. B9 that the suit
    properties are Joint Family Properties and therefore liable for
    partition and not exclusive properties of defendant no.1.
    43
    6.5 It is further submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    that the suit properties were purchased in the name of defendant
    no.1 during the lifetime of Narayanasamy Mudaliar. It is
    submitted that original defendant no.1 had no independent
    income. It is submitted that Narayanasamy Mudaliar had
    ancestral properties/agricultural lands which were generating
    income and he purchased all the properties in the name of his
    wife­defendant no.1 from the income generated from the
    ancestral properties and by selling some of the ancestral
    properties.
    6.6 It is further submitted by Shri G. Balaji, learned
    Counsel appearing on behalf of the respondents­original plaintiffs
    that even the statutory presumption which was rebuttable under
    Section 3 (2) of the Benami Transaction Act, 1988 has been
    omitted by Benami Amendment Act of 2016. It is submitted that
    therefore as on date, there is no such statutory presumption that
    the purchase made in the name of wife or children is for their
    benefit.
    44
    6.7 Making above submissions and relying upon above
    decisions it is prayed to dismiss the present appeal.
  20. Heard the learned Counsel appearing on behalf of the
    respective parties at length. We have gone through and
    considered in detail the findings recorded by the learned Trial
    Court as well as the High Court. We have also considered in
    detail the evidences on record both oral as well as documentary.
    7.1 At the outset, it is required to be noted that the
    original plaintiffs instituted the suit before the learned Trial
    Court for partition of the suit properties and claiming 3/4th share
    with the pleadings that the suit properties were ancestral
    properties and that the Narayanasamy Mudaliar has purchased
    the suit properties in the name of his wife­defendant no.1 out of
    the funds derived through selling his share of the property
    acquired through ancestral nucleus to some other person and
    that the suit properties were in absolute possession and
    enjoyment of the Joint Family Property since the date of
    purchase. From the pleadings, it appears that it was not
    specifically pleaded by the plaintiffs that the Sale
    Deeds/transactions in favour of defendant no.1 were benami
    45
    transactions. It was also not pleaded that the suit properties were
    purchased in the name of defendant no.1 by Narayanasamy
    Mudaliar from the income derived out of the ancestral properties.
    Even the learned Trial Court did not specifically frame the issue
    that whether the transactions/Sale Deeds in favour of defendant
    no.1 are benami transactions or not? Despite the above, learned
    Trial Court and the High Court have held that the
    transactions/Sale Deeds in favour of defendant no.1 were benami
    transactions. The aforesaid findings recorded by the Trial Court
    confirmed by the High Court and the consequent relief of
    partition granted in favour of the plaintiffs is the subject matter
    of the present appeal.
  21. While considering the issue involved in the present
    appeal viz. whether the transactions/Sale Deeds in favour of
    defendant no.1 can be said to be benami transactions or not, the
    law on the benami transactions is required to be considered and
    few decisions of this Court on the aforesaid are required to be
    referred to.
    8.1 In the case of Jaydayal Poddar (Supra) it is specifically
    observed and held by this Court that the burden of proving that a
    46
    particular sale is benami and the apparent purchaser is not the
    real owner, always rests on the person asserting it to be sold. It is
    further observed that this burden has to be strictly discharged by
    adducing legal evidence of a definite character which would either
    directly prove the fact of the benami transaction or establish
    circumstances unerringly and reasonably raising an interference
    of that fact. In paragraph 6 of the aforesaid decision, this Court
    has observed and held as under :
    “6. “It is well­settled 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. Though the question whether
    47
    a particular sale is benami or not, is largely one
    of fact, and for determining this question, no
    absolute formulae or acid tests, uniformly
    applicable in all situations, can be laid down; yet
    in weighing the probabilities and for gathering
    the relevant indicia, the courts are usually
    guided by these circumstances:(1) the source
    from which the purchase money came; (2) the
    nature and possession of the property, after the
    purchase; (3) motive, if any, for giving the
    transaction a benami colour; (4) the position of
    the parties and the relationship if any, between
    the claimant and the alleged benamidar; (5) the
    custody of the title deeds after the sale and (6)
    the conduct of the parties concerned in dealing
    with the property after the sale.
    In the case of Thakur Bhim Singh (Supra) this Court in
    paragraph 18 observed and held as under :
    “18. The principle governing the determination of
    the question whether a transfer is a benami
    transaction or not may be summed up thus: (1)
    the burden of showing that a transfer is a
    benami transaction lies on the person who
    asserts that it is such a transaction; (2) it is
    proved that the purchase money came from a
    person other than the person in whose favour the
    property is transferred, the purchase is prima
    facie assumed to be for the benefit of the person
    who supplied the purchase money, unless there
    is evidence to the contrary; (3) the true character
    of the transaction is governed by the intention of
    the person who has contributed the purchase
    money and (4) the question as to what his
    intention was has to be decided on the basis of
    the surrounding circumstances, the relationship
    of the parties, the motives governing their action
    48
    in bringing about the transaction and their
    subsequent conduct, etc.”
    8.2 In the case of P. Leelavathi (Supra) this Court held as
    under :
    “9.2 In Binapani Paul case (Supra), this Court
    again had an occasion to consider the nature of
    benami transactions. After considering a catena
    of decisions of this Court on the point, this Court
    in that judgment observed and held that the
    source of money had never been the sole
    consideration. It is merely one of the relevant
    considerations but not determinative in
    character. This Court ultimately concluded after
    considering its earlier judgment in the case of
    Valliammal v. Subramaniam (2004) 7 SCC 233
    that while considering whether a particular
    transaction is benami in nature, the following six
    circumstances can be taken as a guide:
    “(1) the source from which the purchase money
    came;
    (2) the nature and possession of the property,
    after the purchase;
    (3) motive, if any, for giving the transaction a
    benami colour;
    (4) the position of the parties and the
    relationship, if any, between the claimant and
    the alleged benamidar;
    (5) the custody of the title deeds after the sale;
    and
    49
    (6) the conduct of the parties concerned in
    dealing with the property after the sale.
    (Jaydayal Poddar v. Bibi Hazra (supra), SCC p. 7,
    para6)”
    8.3 After considering the aforesaid decision in the recent
    decision of this Court in the case of P. Leelavathi (Supra), this
    Court has again reiterated that to hold that a particular
    transaction is benami in nature the aforesaid six circumstances
    can be taken as a guide.
    8.4 Applying law laid down by this Court in the aforesaid
    decisions to the facts of the case on hand and the reasoning
    given by the Trial Court confirmed by the High Court, it appears
    that both, the learned Trial Court and the High Court have erred
    in shifting the burden on the defendants to prove that the sale
    transactions were not benami transactions. As held hereinabove
    in fact when the plaintiffs’ claim, though not specifically pleaded
    in the plaint, that the Sale Deeds in respect of suit properties,
    which are in the name of defendant no.1, were benami
    transactions, the plaintiffs have failed to prove, by adducing
    cogent evidence, the intention of the Narayanasamy Mudaliar to
    50
    purchase the suit properties in the name of defendant no.1 – his
    wife.
  22. Even the reasoning and the findings recorded by the
    Trial Court confirmed by the High Court while holding the Sale
    Deeds/transactions in favour of defendant no.1 as benami
    cannot be said to be germane and or fulfilling the circumstances
    as carved out by this Court in the aforesaid decisions.
    9.1 The first reason which is given by the learned Trial
    Court while holding the suit properties as benami transactions is
    that part sale consideration was paid by Narayanasamy Mudaliar
    at the time of the purchase of the property vide Sale Deed Exh.
    B3. As held by this Court in catena of decisions referred to
    hereinabove, the payment of part sale consideration cannot be
    the sole criteria to hold the sale/transaction as benami. While
    considering a particular transaction as benami, the intention of
    the person who contributed the purchase money is determinative
    of the nature of transaction. The intention of the person, who
    contributed the purchase money, has to be decided on the basis
    of the surrounding circumstances; the relationship of the parties;
    the motives governing their action in bringing about the
    51
    transaction and their subsequent conduct etc. It is required to be
    noted that Narayanasamy Mudaliar, who contributed part sale
    consideration by purchasing property at Exh. B3, might have
    contributed being the husband and therefore by mere
    contributing the part sale consideration, it cannot be inferred
    that Sale Deed in favour of the defendant no.1­wife was benami
    transaction and for and at behalf of the joint family. Therefore,
    the Trial Court as well as the High Court have committed a grave
    error in holding the suit properties as benami
    transactions/ancestral properties on the basis of the document
    at Exh. B3.
    9.2 Similarly, merely because of the stamp duty at the
    time of the execution of the Sale Deed at Exh. B4 was purchased
    by Narayanasamy Mudaliar, by that itself it cannot be said that
    the Sale Deed at Exh. B4 in favour of defendant no.1 was benami
    transaction. It is required to be noted that except the aforesaid
    two documentary evidences at Exh. B3 and B4, no other
    documentary evidence/transaction/Sale Deed in favour of
    defendant no.1 have been considered by the learned Trial Court
    and even by the High Court.
    52
    9.3 Now, so far as the findings recorded by the Trial Court
    and the High Court on considering the Release Deed at Exh. A1
    viz. the Release Deed executed by Nagabushanam in favour of
    defendant no. 1 on payment of Rs.10,000/­ and therefore
    inference drawn by the learned Trial Court and the High Court
    that therefore even the defendant no.1 also considered the share
    of the daughter and considered the suit properties as joint family
    properties and therefore plaintiffs have also share in the suit
    properties is concerned, the said finding is just a mis­reading and
    mis­interpretation of the evidence on record. In her deposition,
    defendant no.1 has explained the payment of Rs.10,000/­ to
    Nagabushanam, daughter and the Release Deed executed by her.
    It is specifically stated by her that though she had no share in
    the suit properties, with a view to avoid any further litigation in
    future and to be on safer side, Rs.10,000/­ is paid and the
    Release Deed was got executed by Nagabushanam in favour of
    defendant no.1. Even in the Release Deed at Exh. A1, it is so
    specifically stated. Therefore, merely because to avoid any further
    litigation in future and though Nagabushanam had no share in
    the suit properties, Rs.10,000/­ was paid and the Release Deed
    was got executed in favour of defendant no.1, by that itself, it
    53
    cannot be said that defendant no.1 treated the suit properties as
    ancestral properties and/or Joint Family Properties.
    9.4 Even considering the Will executed by defendant no.1
    dated 11.02.1987 and the subsequent revocation of the Will is
    suggestive of the fact that defendant no.1 all throughout treated
    the suit property as her self­acquired property which according to
    her were purchased from the Stridhana and selling of the
    jewellery.
  23. It is required to be noted that in the plaint the
    plaintiffs came out with the case that the suit properties
    purchased in the name of defendant no.1 by Narayanasamy
    Mudaliar from the funds raised by selling the ancestral properties
    received by him. It was never the case on behalf of the plaintiffs
    that the suit properties were purchased by Narayanasamy
    Mudaliar in the name of defendant no.1 out of the income
    received from the ancestral properties. However, considering the
    date of transactions with respect to the suit properties and the
    ancestral properties sold by Narayanasamy Mudaliar, it can be
    seen that all the suit properties purchased in the name of
    defendant no.1 were much prior to the sale of the ancestral
    54
    properties by Narayanasamy Mudaliar. The ancestral property
    was sold by the Narayanasamy Mudaliar (Exh. A3) was on dated
    11.11.1951. However, the Sale Deeds at Exh. B3, B4, B5, B6 and
    B7 which are in favour of defendant no.1 were much prior to the
    sale of the property at Exh. A3. Therefore, also it cannot be said
    that the suit properties were purchased in the name of defendant
    no.1 by Narayanasamy Mudaliar from the funds received by
    selling of the ancestral properties.
  24. Even considering the observations made by this Court
    in paragraph 10 in the case of Om Prakash Sharma (Supra) it
    can be said that Narayanasamy Mudaliar might have purchased
    the properties in the name of defendant no.1 in order to provide
    his wife with a secured life in the event of his death. It is required
    to be noted that it was the specific case on behalf of the
    defendant no.1 that the suit properties were purchased by her
    from the Stridhana and on selling of the jewellery.
  25. It is required to be noted that the benami transaction
    came to be amended in the year 2016. As per Section 3 of the
    Benami Transaction (Prohibition) Act 1988, there was a
    presumption that the transaction made in the name of the wife
    55
    and children is for their benefit. By Benami Amendment Act,
    2016, Section 3 (2) of the Benami Transaction Act, 1988 the
    statutory presumption, which was rebuttable, has been omitted.
    It is the case on behalf of the respondents that therefore in view
    of omission of Section 3(2) of the Benami Transaction Act, the
    plea of statutory transaction that the purchase made in the name
    of wife or children is for their benefit would not be available in
    the present case. Aforesaid cannot be accepted. As held by this
    Court in the case of Binapani Paul (Supra) the Benami
    Transaction (Prohibition) Act would not be applicable
    retrospectively. Even otherwise and as observed hereinabove, the
    plaintiff has miserably failed to discharge his onus to prove that
    the Sale Deeds executed in favour of defendant no.1 were benami
    transactions and the same properties were purchased in the
    name of defendant no.1 by Narayanasamy Mudaliar from the
    amount received by him from the sale of other ancestral
    properties.
    12.1 Once it is held that the Sale Deeds in favour of
    defendant no.1 were not benami transactions, in that case, suit
    properties, except property nos. 1 and 3, which were purchased
    56
    in her name and the same can be said to be her self­acquired
    properties and therefore cannot be said to be Joint Family
    Properties, the plaintiffs cannot be said to have any share in the
    suit properties (except property nos. 1 and 3). At this stage, it is
    required to be noted that the learned Counsel appearing on
    behalf of defendant no.1 has specifically stated and admitted that
    the suit property Item nos. 1 and 3 can be said to be the
    ancestral properties and according to him even before the High
    Court also it was the case on behalf of the defendant no.1 that
    item nos. 1 and 3 of the suit properties are ancestral properties.
  26. In view of the above and for the reasons stated above,
    the present appeal is partly allowed. The impugned judgement
    and order passed by the High Court as well as the Trial Court
    holding that the plaintiffs have 3/4th share in the suit properties
    (Except Item Nos. 1 and 3 of the suit properties) are hereby
    quashed and set aside. It is observed and held that except Item
    Nos. 1 and 3 of the suit properties, the plaintiffs have no share in
    other suit properties. Preliminary Decree directed to be drawn by
    the learned Trial Court, confirmed by the High Court, is hereby
    57
    directed to be modified accordingly. The present appeal is partly
    allowed to the aforesaid extent. No costs.
    ……………………………….J.
    [L. NAGESWARA RAO]
    New Delhi; ……………………………….J.
    May 09, 2019. [M.R. SHAH]
    58