2025:MHC:1807OSA.Nos.178 and 198 of 2004

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 03.04.2025

PRONOUNCED ON : 28.07.2025

CORAM

THE HONOURABLE Dr.JUSTICE ANITA SUMANTH

and

THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN

Original Side Appeal Nos.178 and 198 of 2004

and

CMP.No.12619 of 2004

OSA.No.178/2004

R.Janakiammal (died)

2.Hameed Ayisha

3.Thahseen Sathak

4.Minor Mariam Sharafiya

5.Minor Savarina Sathak

(Sole appellant died.

Respondents 5 to 8 transposed as appellants 2 to 5

vide order dated 07.04.2025 made in

CMP.No.8917 of 2025)

... Appellants

-Versus-

1.R.Srinivasan

2.R.Swaminathan

3.R.V.Raman

4.R.Venugopal

... Respondents

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OSA.Nos.178 and 198 of 2004

OSA.No.198/2004

1.Hameed Ayisha

2.Ms.Thahseen Sathak

4.Minor Mariam Sharafiya

5.Minor Savarina Sathak

(Appellants 3 & 4 declared as Major

and the guardian (Hameed Aysha) discharged

from guardianship vide order dated 11.08.2009

made in CMP.Nos.983 & 984 of 2009)

... Appellants

-Versus-

1.R.Srinivasan

2.Mrs.R.Janakiammal [deceased]

3.R.Swaminathan [died]

4.R.V.Raman

5.R.Venugopal

6.Rajalkshmi

7.Girija

8.Vanaja

9.Lakshmi

10.Ganesh

(R6 to R10 brought on record as

LRs of deceased 3

rd

respondent vide order

dated 14.09.2009 made in CMP.Nos.980 to 982/2009)

[R1, R4 & R5 were recorded as LRs of the

deceased 2

nd

respondent vide order dated 27.07.2011]

... Respondents

Common Prayer:- Original Side Appeals filed under Order XXXVI Rule 1

of the Original Side Rules read with Clause 15 of the Letters Patent Act,

praying to set aside the judgement and decree dated 11.02.2004 passed in

C.S.No.1910 of 1995.

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OSA.Nos.178 and 198 of 2004

For Appellants

in both OSAs : Ms.Chitra Sampath

Senior Counsel

for Mr.I.Abrar Md. Abdullah

For Respondents

in OSA.178/2004: Mr.S.Parthasarathy

Senior Counsel

for Mr.Ravi for R1

R2 to R8 - No Appearance

For Respondents

in OSA.198/2004: Mr.S.Parthasarathy

Senior Counsel

for Mr.Ravi for R1

R2 & R3 - Died

R4 & R5 - No Appearance

Mr.K.Ravi Anantha Padmanabhan

for R6 to R10

*****

C O M M O N J U D G M E N T

(Judgment of the Court was delivered by C.KUMARAPPAN, J.)

Both the OSAs are arising against the judgment and decree passed in

C.S.No.1910 of 1995 dated 11.02.2004.

2. OSA No.178 of 2004 was originally filed by the first defendant

Janakiammal. After her demise, the defendants 6 to 9 were transposed as

appellants 2 to 5.

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OSA.Nos.178 and 198 of 2004

3. The other OSA No.198 of 2004 was filed by the defendants 6 to 9

by themselves. Since both the OSAs are arising against the same judgment

and decree, and the parties are also one and the same, we deem it appropriate

to dispose of both the OSAs jointly.

4. For the sake of convenience, the parties will be referred to

according to their litigative status before the learned Single Judge.

5. The brief facts which give rise to the instant OSAs are as follows:-

(a). The present appellants/defendants 6 to 9 in both the OSAs are the

subsequent purchasers of the suit property from the first defendant

Janakiammal. The plaintiff and the defendants 2 to 4 are the children of the

first defendant R.Janakiammal. The defendants 5 to 9 are the subsequent

purchasers. The first defendant's husband Rajaram passed away in the year

1949 leaving behind his wife Janakiammal, his 4 sons and 3 daughters.

Among them, his 3

rd

son Srinivasan is the plaintiff, and the other 3 sons viz.,

R.Swaminathan, R.V.Raman and R.Venugopal are arrayed as defendants 2 to

4 respectively.

(b). It is the specific submission of the plaintiff that his father died

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OSA.Nos.178 and 198 of 2004

penniless leaving behind no movable or immovable properties. After a

period of 12 years of the death of his father, the plaintiff and the defendants 2

to 4 pooled their resources and started a Company under the name and style

of M/s.Premier Surgical Company. The plaintiff and the defendants have

been employed in private concern, as well as in the Government

establishments. According to the plaintiff, the 2

nd

defendant's contribution to

the business is meagre, while comparing with the defendants 3 and 4 and the

plaintiff. From and out of the profits of the above firm and also from the

funds provided by the defendants 2 to 4 the suit property was purchased in

the name of the first defendant qua R.Janakiammal on 28.03.1966 by virtue

of a registered sale deed under Document No.919 of 1966.

(c). Though the sale deed was executed in the name of the first

defendant, the plaintiff and the defendants 2 to 4 never intended to treat the

property as that of their mother absolutely, and she was only a mere name

lender. It is his further submission that even the first defendant never treated

the property as her absolute property. This plaintiff further submits that, the

defendants 3, 4 and the plaintiff have contributed a specific sum of money to

the first defendant for her livelihood as well as to defray the expenses

relating to maintenance of the building.

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OSA.Nos.178 and 198 of 2004

(d). This plaintiff submits that taking advantage of the fact that the 2

nd

defendant is residing along with the first defendant, by exerting undue

influence over the first defendant, attempted to grab the suit property. After

coming to know about the evil designs of the 2

nd

defendant, the plaintiff

issued a letter dated 10.05.1994 demanding partition of the suit property. In

response to the said letter, the defendants 3 and 4 issued reply by conceding

his demand, whereas, the defendants 1 and 2 did not respond to the said

letter. It is the case of the plaintiff that the conciliatory efforts taken by close

relatives and friends have also proved futile. Therefore, the plaintiff has

come forward with a suit for partition.

6. Though the defendants 3 and 4 filed a written statement, they have

conceded the plaintiff's claim and also have not seriously disputed the plaint

averments.

7. However, the defendants 1 and 2 filed written statement disputing

the plaintiff's claim. The first defendant resisted the claim of the plaintiff by

contending that the suit is barred by Section 4(1) of the Benami Transactions

(Prohibition) Act, 1988. It is his further submission that the suit property is

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OSA.Nos.178 and 198 of 2004

the absolute property of the first defendant and that the suit property was

purchased from and out of the sale proceeds of the first defendant's gold

jewels, silver vessels and also from her savings, which she made in the

course of running the family. The payment of sale consideration by the first

defendant and discharge of mortgage is apparent, from the recitals of the sale

deed. The first defendant submits that though she struggled in her life to

bring up the plaintiff and other defendants, no one, except the 2

nd

defendant

took care of her. Hence, the first defendant prayed to dismiss the suit.

8. In line with the first defendant's statement, the 2

nd

defendant has

also disputed the plaintiff's claim. According to him, the firm M/s.Premier

Surgical Company was initially started by him as the sole proprietor concern,

later, the 3

rd

defendant was inducted as a junior partner and his contribution

was only Rs.2,000/-, which is less than his contribution of Rs.3,000/-. This

defendant also contended that the suit property was purchased out of the sale

proceeds of the gold jewels of the first defendant and savings from the

amount provided by the 2

nd

defendant. As such, according to the 2

nd

defendant, the suit property is the absolute property of the first defendant.

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OSA.Nos.178 and 198 of 2004

9. The subsequent purchaser 6

th

defendant has also filed written

statement supporting the defendants 1 and 2. It is his submission that the

defendants 5 and 6 have purchased undivided half share each vide sale deed

dated 27.11.1995 and 05.12.1995 respectively from the first defendant. As

such, from the date of sale, they became the absolute owner of the suit

property. He would further submit that the suit is not maintainable, as no

declaratory relief sought for by the plaintiff. He also questioned the valuation

of the suit. Thus, he prayed to dismiss the suit.

10. After having considered the pleadings of either side and upon the

facts and law, which was accepted by one side and disputed by the other

side, the learned Single Judge framed the following issues:-

i)Whether the plaintiff is entitled to preliminary decree for partition

in respect of ¼ share upon the plaint schedule property?

ii)Whether the suit is not maintainable in view of Section 4(1) of

Benami Transactions (Prohibition) Act, 1988?

iii)Whether the plaint schedule property is exclusive and separate

property of the first defendant?

iv)Whether defendants 5 and 6 are bona fide purchasers for valuable

consideration?

v)Whether defendants 3 and 4 are also entitled to get their respective

¼ share as claimed in their separate written statements?

vi)To what relief the plaintiff is entitled?

(Extracted as it is)

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OSA.Nos.178 and 198 of 2004

11. In order to prove the plaintiff's claim, the plaintiff himself was

examined as PW1. On behalf of the defendants, the defendants 1 and 2 were

examined as DW1 and DW2. To support the plaintiff's claim, he marked 6

documents as Exs.P1 to P6. However, on behalf of the defendants, no

documents were marked.

12. The Trial Court, after having considered the oral and documentary

evidence, has ultimately concluded that, since the mother of the plaintiff qua

the first defendant was holding the property in a fiduciary capacity for and on

behalf of the plaintiff and the defendants 2 to 4 granted a decree for partition.

Aggrieved with the same, the defendants 5 to 9 preferred separate appeal in

OSA.No.198 of 2004, and the first defendant Janakiammal preferred another

appeal in OSA.No.178 of 2004. After the demise of Janakiammal, the

appellants in OSA.No.198 of 2004, who are the defendants in the suit were

ordered to be transposed as appellants even in OSA.No.198 of 2004.

13. We have heard Ms.Chitra Sampath, learned Senior Counsel

appearing on behalf of Mr.I.Abrar Md. Abdullah, learned counsel for the

appellants, Mr.S.Parthasarathy, learned Senior Counsel appearing on behalf

of Mr.Ravi, learned counsel for the first respondent, and Mr.K.Ravi Anantha

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OSA.Nos.178 and 198 of 2004

Padmanabhan, learned counsel appearing for the respondents 6 to 10 in

OSA.No.198 of 2004.

14. The learned counsel for the appellants/defendants 6 to 9, who are

the subsequent purchasers would vehemently contend that the way in which

the plaint drafted would unequivocally manifest apparent Benami

Transactions, which is prohibited by Section 4(1) of the Benami Transactions

(Prohibition) Act, 1988. The learned Senior Counsel would further contend

that the burden of proof rests upon the plaintiff to prove the factum of

providing funds for the purchase of the suit property, whereas in the case in

hand, even according to the admission of the plaintiff, there are no proof

available to show his contribution. The learned Senior Counsel would

further contend that, according to the recitals of Ex.A1-Sale Deed, the entire

sale consideration was paid by the first defendant. Hence, it is her

submission that the suit property is the absolute property of the first

defendant. She would further contend that even for argument sake, if we

presume without admitting that the suit property was purchased through the

income derived by the plaintiff and the defendants 2 to 4, then the suit is

virtually hit by Section 4(1) of the Benami Transactions (Prohibition) Act.

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OSA.Nos.178 and 198 of 2004

The learned Senior Counsel would also contend that in order to bring the suit

within the exception to Section 4(1) of the Benami Transactions

(Prohibition) Act, there are no pleadings or evidence in the suit. The learned

Senior Counsel would also contend that the appellants being the bona fide

purchasers for valuable consideration, their purchase has to be protected.

Hence, prayed to allow these appeals. In support of her contentions, the

learned Senior Counsel relied upon the following judgments:-

1.Kumaraswami Chettiar Vs. Veliburammal reported in

1998-2-LW-766.

2.Unreported judgment in Duraisamy Vs. N.Ethirajulu

[A.S.Nos.737 of 1986 & 369 of 2002].

3.Central Board of Secondary Education and another Vs.

Aditya Bandopadhyay and others reported in (2011) 8

SCC 497.

4.Marcel Martins Vs. M.Printer and others reported in

(2012) 5 SCC 342.

5.J.M.Kohli Vs. Madan Mohan Sahni and another

reported in 2012 SCC OnLine Del 2620.

6.Sh.Amar N.Gugnani Vs. Naresh Kumar Gugnani

(through Legal Heirs) reported in 2015 SCC OnLine Del

11248.

7.Anil Bhasin Vs. Vijay Kumar Bhasin and others reported

in 2002 SCC OnLine Del 907.

8.Kona Varonica Swarnamukhi Vs. Devika Rani reported

in MANU/TN/2679/2019.

9.V.Selvarani (died) and others Vs. R.Balakrishnan

reported in 2024 (1) CTC 561.

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OSA.Nos.178 and 198 of 2004

10.Union of India and another Vs. Ganpati Dealcom Pvt.

Ltd., reported in 2022 SCC OnLine SC 1064.

11.Mahesh Karwal Vs. Satya Devi reported in 2018 SCC

OnLine Del 12090.

12.Iswar Bhai C.Patel Alias Bachu Bhai Patel Vs. Harihar

Behera and another reported in (1999) 3 SCC 457.

13.Vidhyadhar Vs. Manikrao and another reported in

(1999) 3 SCC 573.

14.Bachhaj Nahar Vs. Nilima Mandal and another reported

in (2008) 17 SCC 491.

15. Per contra, the learned Senior Counsel appearing on behalf of the

plaintiff/first respondent would contend that, even according to the

admission of the first defendant, the suit property was purchased out of the

earnings of the plaintiff and the defendants 2 to 4. He would further contend

that admittedly the first defendant, being a homemaker, has no other

resources except the income of the plaintiff and the defendants 2 to 4, to

purchase a suit property. The learned Senior Counsel would also contend

that only under the undue influence of the 2

nd

defendant, the first defendant

had filed a written statement as if the suit property is her absolute property.

He would also contend that the 2

nd

defendant is the ultimate beneficiary from

the sale of the suit property to the appellants herein. He would also contend

that a reading of the entire plaint averments would demonstrate the existence

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OSA.Nos.178 and 198 of 2004

of fiduciary relationship to bring the suit within the exception to Section 4(1)

of the Act. The learned Senior Counsel would also contend that the

appellants are not the bona fide purchasers for valuable consideration, as

they have purchased the property while the order of injunction was in force

in O.A.No.1275 of 1995 dated 28.11.1995. Thus, it was contended that the

judgment and decree passed by the learned Single Judge is well merited, and

does not require any interference, as a sequitur, prayed to dismiss the

appeals. To buttress his contention, the learned Senior Counsel relied upon

the Division Bench judgment of this Court in Chandra Sundararaj (died)

and another Vs. C.M.Dhinakaran @ Suresh and others reported in 2019

(6) CTC 517.

16. We have given our anxious consideration to either side

submissions.

17. While considering the submissions of either side, the following

points arise for our determination:-

(i). Whether the suit property is the absolute property of the

first defendant?

(ii). Whether the suit is hit by Section 4(1) of the Benami

Transactions (Prohibition) Act, 1988?

(iii). Whether the plaintiff is entitled for a preliminary

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OSA.Nos.178 and 198 of 2004

decree for partition as prayed for?

(iv). Whether the defendants 5 and 6 are the bona fide

purchasers for valuable consideration?

(v). Whether the defendants 3 and 4 are entitled to get their

respective ¼ share as prayed in the written statement?

Point Nos.(i) to (iii) & (v):-

18. The main contention put forth by the plaintiff is, the entire sale

consideration of the Sale Deed dated 28.03.1966 was borne out by the

plaintiff and the defendants 2 to 4. But, according to the defendants 1 and 2,

the suit property is the absolute property of the first defendant and that the

sale consideration was paid by the first defendant from and out of her sale

proceeds of the gold jewels and silver vessels and also from the amount

saved by her while running the family.

19. Let us now consider the contention put forth by the plaintiff.

According to him, he and the defendants 2 to 4 have contributed for the

purchase of the property. But the learned counsel for the defendants 6 to 9

invited the attention of this Court about the admission of the plaintiff in his

cross examination. As rightly contended by the learned Senior Counsel, the

plaintiff had categorically admitted that there are no records to show his

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OSA.Nos.178 and 198 of 2004

contribution for the purchase of the suit property. He would further admit

that their mother had paid all the amounts. But during re-examination, it was

clarified by the plaintiff that, though mother has paid the sale consideration,

it was out of the money provided by all the sons. Therefore, apparently

except the ipse dixit of the plaintiff, he did not file any documents to show

the contribution made by him for the purchase of the suit property.

20. At this juncture, the learned Senior Counsel appearing for the

plaintiff would invite the attention of this Court about the admission made by

the first defendant during her cross examination. For ready reference, the

same is extracted below:-

“All my sons used to give their earning to me and I used to

keep them at a place and give them whenever they want. If there was

any balance left I used to take.”

From the reading of the above admission, it is clear that the savings of the

first defendant was only from the amount paid by her sons. Except her sons'

income, virtually the first defendant has no other income. Therefore, it is

obvious that her savings could have become possible only from the money

provided by the plaintiff and the defendants 2 to 4, from their earnings.

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OSA.Nos.178 and 198 of 2004

21. At this juncture, the learned Senior Counsel for the plaintiff invited

the attention of this Court in respect of the reply notice [Ex.P6] sent by the

2

nd

defendant to the plaintiff. At the bottom of Ex.P6-reply notice, the

following statement was made by the 2

nd

defendant:-

“The business mentioned in your letter belongs to me and our

brother Raman and the property exclusively to me and purchased in

the name of our mother, and developed from out of funds

exclusively earned and provided by me. Likewise, our brother

Raman, acquired the properties from out of his share income, in the

names of his wife and himself. You are fully aware of these facts.

But yet have come forwards with this false claim.”

[Emphasis supplied by this Court]

22. According to the above statement, the suit property was purchased

exclusively from the funds provided by the 2

nd

defendant. But, there is no

pleadings in this regard. But, it is the defence of the 2

nd

defendant that the

first defendant purchased the suit property from her sale proceeds and from

the amount provided by the 2

nd

defendant. However, according to the first

defendant, apart from the above amount, he also used her savings for the

purchase. But, contrary to the above specific stand, the letter of the 2

nd

defendant [Ex.P6] set up new case of providing entire contribution of the

sale consideration for the purchase of the suit property. Curiously, the above

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statement was accepted by the first defendant by subscribing her signature

with following endorsement in Tamil:-

“nkw;fz;l tpgu';fis gof;ff; nfl;L rhp vd;gij cWjp bra;fpnwd;/”

23. Therefore, though the first defendant had contended that the suit

property is her absolute property, and was purchased from the sale proceeds

of her jewels and savings, in Ex.P6 she took different stand and accepted that

the suit property is the absolute property of the 2

nd

defendant and was

purchased only from his contribution. Therefore, as rightly observed by the

learned Single Judge, the first defendant was not independent, but was under

the clutches of the 2

nd

defendant. Such finding of the learned Single Judge,

could be further vindicated from the admission made by the first defendant

during her cross examination that, while she sold the suit property to the

defendants 5 and 6, the entire sale proceeds was received by the 2

nd

defendant. During cross examination, she admits as follows:-

“The suit property has been sold (Josier Street) the suit

property. I do not know the consideration for which it was sold.

The consideration was received by Mr.Swaminathan.”

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24. As already discussed, from the reading of the first defendant's

evidence, it is amply clear that the family was run by the first defendant from

the income derived by the plaintiff and the defendants 2 to 4. No doubt the

unremunerative economic value of a homemaker certainly have contributed

effective savings for the family. Such contribution of the first defendant

cannot be lightly dealt, and we would like to discuss this aspect separately

infra. Though the plaintiff did not submit any records to show his

contribution for the purchase of the suit property, he had proved the same

from the admission of the first defendant.

25. In this regard, the learned Senior Counsel for the appellants would

invite the attention of the judgment of the learned Single Judge of this Court

in Kumaraswami Chettiar's case [cited supra], wherein it was held that,

when there is no proof for contribution, question seeking partition does not

arise. But, in the case in hand, money received from the first defendant's

sons was accepted, though the first defendant denied that the payment of sale

consideration from the above money.

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26. The learned Senior Counsel for the appellants has also relied upon

the Division Bench judgment of this Court in Duraisamy's case [cited supra]

and would contend that the recital in Ex.P1-Sale deed, that it was the first

defendant who paid the sale consideration, has to be accepted, in the absence

of any contra evidence. But, in the case in hand, though there is a reference

in Ex.P1-Sale Deed that the sale consideration was paid by the first

defendant, the issue is whose money was paid. Here, according to the

admission of the first defendant, she do not have any money except the

income generated by her sons.

27. Though the first and 2

nd

defendant plead that the first defendant

has used her resources by selling her gold jewels and silver vessels, such

statement become highly doubtful, due to the prevaricating stand of the 1

st

defendant in Ex.P6-letter. Accordingly, the contention put forth by the

plaintiff that the sale consideration was paid from the earnings of the

plaintiff and the defendants 2 to 4 is liable to be accepted. As a concomitant,

the purchase in the name of the first defendant will make the transaction

becomes Benami.

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28. But according to the plaintiffs, though the transaction is Benami, it

comes within the exception to the prohibition. Now let us consider the above

defence. According to the plaintiff, since the first defendant being a mother,

the sale deed was registered in her name, as a mark of respect and

sentimental attachment, and it was further contended that though the sale

deed stands in the name of the first defendant, the plaintiff and the

defendants 2 to 4 never intended to treat it as first defendant's property.

Based upon this pleading, the learned Senior Counsel appearing for the

appellants would contend that the entire transaction is hit by Section 4(1) of

Benami Transactions (Prohibition) Act. For Ready reference Section 4 of

Benami Transactions (Prohibition) Act is extracted hereunder:-

“4. Prohibition of the right to recover property held

benami- (1) No suit, claim or action to enforce any right in

respect of any property held benami against the person in

whose name the property is held or against any other person

shall lie by or on behalf of a person claiming to be the real

owner of such property.

(2) No defence based on any right in respect of any

property held benami, whether against the person in whose

name the property is held or against any other person, shall be

allowed in any suit, claim or action by or on behalf of a person

claiming to be the real owner of such property.

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(3) Nothing in this section shall apply,--

(a) where the person in whose name the property is held

is a coparcener in a Hindu undivided family and the property

is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held

is a trustee or other person standing in a fiduciary capacity,

and the property is held for the benefit of another person for

whom he is a trustee or towards whom he stands in such

capacity.”

29. The learned Senior Counsel for the appellants relied upon so many

judgments to bring home the point that this suit is hit by Benami Prohibition

Act, and that between mother and son, there cannot be any fiduciary capacity

like that of trustee and beneficiary. To understand the word fiduciary

relationship, it is appropriate to refer the celebrated and oft quoted judgment

of Aditya Bandopadhyay's case [cited supra]. Wherein the Hon'ble Supreme

Court after analysing from various law dictionaries, has ultimately explained

the term fiduciary relationship. The relevant paragraphs are extracted

hereunder:-

“38. The terms “fiduciary” and “fiduciary relationship” refer

to different capacities and relationship, involving a common duty or

obligation.

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38.1.Black's Law Dictionary (7th Edn., p. 640) defines

“fiduciary relationship” thus:

“Fiduciary relationship.—A relationship in which one

person is under a duty to act for the benefit of the other on

matters within the scope of the relationship. Fiduciary

relationships—such as trustee-beneficiary, guardian-ward,

agent-principal, and attorney-client—require the highest

duty of care. Fiduciary relationships usually arise in one of

four situations: (1) when one person places trust in the

faithful integrity of another, who as a result gains

superiority or influence over the first, (2) when one person

assumes control and responsibility over another, (3) when

one person has a duty to act for or give advice to another

on matters falling within the scope of the relationship, or

(4) when there is a specific relationship that has

traditionally been recognised as involving fiduciary duties,

as with a lawyer and a client or a stockbroker and a

customer.”

38.2. .....................

38.3. .....................

38.4. ......................

38.5. ....................

39. The term “fiduciary” refers to a person having a duty to act for

the benefit of another, showing good faith and candour, where such

other person reposes trust and special confidence in the person

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owing or discharging the duty. The term “fiduciary relationship” is

used to describe a situation or transaction where one person

(beneficiary) places complete confidence in another person

(fiduciary) in regard to his affairs, business or transaction(s). The

term also refers to a person who holds a thing in trust for another

(beneficiary). The fiduciary is expected to act in confidence and for

the benefit and advantage of the beneficiary, and use good faith and

fairness in dealing with the beneficiary or the things belonging to

the beneficiary. If the beneficiary has entrusted anything to the

fiduciary, to hold the thing in trust or to execute certain acts in

regard to or with reference to the entrusted thing, the fiduciary has

to act in confidence and is expected not to disclose the thing or

information to any third party.”

(Emphasis supplied by this Court)

From the above ratio, it is clear that the term “fiduciary relationship” not

only confined with the Trust, but it also exists between the relationship

where one person has duty to advise another.

30. In a subsequent judgment of the Hon'ble Supreme Court in Marcel

Martins's case [cited supra], after referring paragraph 39 of Aditya

Bandopadhyay's case [cited supra] explained the word “fiduciary capacity”

as follows:-

“It is manifest that while the expression “fiduciary capacity”

may not be capable of a precise definition, it implies a relationship

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that is analogous to the relationship between a trustee and the

beneficiaries of the trust. The expression is in fact wider in its import

for it extends to all such situations as place the parties in positions

that are founded on confidence and trust on the one part and good

faith on the other.”

(Emphasis supplied by this Court)

According to the above explanation, the word “fiduciary capacity” is

analogous to the relationship of trustee and beneficiary. To put it with more

precision, the word “fiduciary capacity” cannot be restricted only in Trust

matters, but it is possible even among the family members.

31. Coming back to the defence of exception to Benami Prohibition

Act, the learned Senior Counsel for the plaintiff would rely upon the

judgment of this Court in Chandra Sundararaj (died) and another Vs.

C.M.Dhinakaran @ Suresh and others reported in 2019 (6) CTC 517. The

relevant paragraph is extracted hereunder:-

“(v) As already seen Section 2(9)(A)(b)(i), exempts a

transaction between persons who stand in a fiduciary capacity

towards the other from being termed as a Benami Transaction.

Here, the transaction is between the mother and the son.

Therefore, the fact that the mother had contributed funds for the

purchase of the property in the name of her son having been

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proved, I do not think that the claim of the first plaintiff with

reference to ‘A’ property could be said to barred by the provisions

of the Prohibition of Benami Properties Transaction Act, 1988.

Hence, Issue No. 10 is answered in favour of the plaintiff and

against the first defendant.”

32. Even in the case in hand, it is an admitted fact that sons have given

their earnings to their mother qua the first defendant, and that in the usual

course of running the family, she saved some amount from the above

earnings. Therefore, the contention of the plaintiff that they had given their

earnings to their mother only upon the faith that she would safeguard the

money for their betterment cannot be held to be far fetched as it is not

unusual or unnatural for a son to repose faith upon their mother. In such a

background of this case, the savings made by the first defendant could only

be construed as for the benefit of her sons.

33. If that being the case, as held by the Hon'ble Supreme Court in

Aditya Bandopadhyay's case [cited supra] and Marcel Martin's case [cited

supra], the first defendant's stand would come within the contours of the

word “fiduciary capacity”. Therefore, as rightly observed by the learned

Single Judge, though there is a Benami transaction, the bar provided under

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the Benami Prohibition Act, is exempted by Section 4(3) (b) of the Act.

34. The learned Senior counsel for the appellants has also relied upon

the four judgments of the learned Single Judge of Delhi High Court on the

point of ostensible conflict between the provisions of Section 4(3)(b), and

Section 7 of the Benami Transactions (Prohibition) Act. According to them,

by way of amendment in Benami Transactions Act, Sections, 81, 82 and 94

of the Indian Trusts Act, 1882 were repealed, however, these aspects were

not dealt in Marcel Martin's case [cited supra]. Since there exist a provision

for exemption from the Benami Transactions (Prohibition) Act under Section

4(3)(b), we do not want to go into the nitigrities of the above submissions.

Furthermore, Section 4(3)(b) of the Benami Transactions (Prohibition) Act

has been explained in extenso in Marcel Martins's case [cited supra]. In this

regard, it is relevant to refer the judgment of the Hon'ble Supreme Court in

State of Gujarat v. R.A. Mehta reported in (2013) 3 SCC 1, wherein the

Hon'ble Supreme Court has occasion to held that, even if a particular issue

has not been agitated earlier or a particular argument advanced but was not

considered in the judgment, the same does not affect its binding effect.

Therefore, the reliance of the Delhi High Court's judgement, which

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distinguish the Supreme Court judgment, has no relevance to decide these

appeals.

35. The learned Senior Counsel for the appellants also relied upon the

V.Selvarani's case [cited supra] to invoke Section 3 of the Benami

Transactions (Prohibition) Act, which forbits Binami transaction. But,

according to the recitals of the sale deed referred to in the above reported

judgment, there is specific clause, that such purchase was made for the

benefit of his wife. Only in that context, Section 3 was employed. But in the

case in hand, the fact is not similar.

36. The learned Senior Counsel for the appellants has also relied upon

the following judgments in (i) Iswar Bhai C.Patel's case [cited supra], upon

the ratio to draw adverse inference, (ii) Vidhyadhar's case [cited supra] on

the the point of non examination of witnesses, and (iii) Bachhaj Nahar's

case [cited supra] on the point of no pleading, no evidence. The above

judgments are well settled proposition of law and this Court has no

grievance in the above ratios. But, the issue here is, no necessity arises for

this Court to use the above precedents, to the present facts of the case.

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37. In view of the above detailed discussion, it is amply clear that

though the sale deed stands in the name of the first defendant as Benami

transaction, since she stood in the fiduciary capacity, such transaction is

saved by Section 4(3) (b) of the Benami Transactions (Prohibition) Act. If

that being the case, the first defendant cannot have any absolute right over

the suit property, and the plaintiff and the defendants 2 to 4 are entitled to

have a share in the suit property.

38. Let us now see, what is the extent of share the plaintiff and the

defendants 2 to 4 are entitled to have. At this juncture, this Court would like

to refer the economical contribution made by the first defendant for the

betterment of the family. While considering the pleadings, the plaintiff had

prayed to divide the property into 4 equal shares and thereby, unfortunately

ignored the economical contribution made by the first defendant. In this

regard, it is relevant to refer the judgment of the Hon'ble Supreme Court in

Kirti and Ors. Vs. Oriental Insurance Co. Ltd., reported in (2021) 2 SCC

166, where the Hon'ble Supreme Court after referring Arun Kumar Agrawal

v. National Insurance Co. Ltd., reported in (2010) 9 SCC 218, which

referred our High Court Division Bench judgment in National Insurance

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OSA.Nos.178 and 198 of 2004

Co. Ltd. v. Deepika, reported in 2009-4-LW-223, has considered the

economical value of a woman in doing the unremunerative domestic activity.

39. In the case in hand, at the time of purchase of the property, the

plaintiff and the defendants were unmarried, and it was the first defendant

who burned her midnight oil to up bring them by providing food, shelter, and

care. Such unremunerative domestic activity would definitely have direct

impact upon the quantum of savings which she made. Had she not done such

domestic work, the possibility of savings become doubtful, as her sons have

to shell out substantial earnings for their food, shelter and other

requirements. Therefore, such indirect economical contribution of the first

defendant would definitely have accumulated their quantum of savings.

Therefore, the unremunerated domestic work undertaken by the plaintiff's

mother has to be definitely taken into consideration in terms of it's economic

value, as a contribution, along with her son. Hence, we are of the indubitable

opinion that the first defendant is also entitled to have a equal share along

with the plaintiff and the defendants 2 to 4. Hence, the suit property has to be

divided into 5 equal shares, and the plaintiff and the defendants 1 to 4 are

equally entitled to have 1/5

th

share each.

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OSA.Nos.178 and 198 of 2004

Point No.(iv)

40. The learned Senior counsel for the first defendant would contend

that even on the date of the Sale Deed [Ex.P1], there was an injunction not to

alienate the suit property. But, there are no proof as to whether these

appellants were aware about such an order. As we discussed hereinabove,

according to the first defendant's admission, the 2

nd

defendant had received

the sale consideration from the defendants 5 and 6. But, in the Written

Statement, they would state that they have paid the sale consideration to the

first defendant, which is contrary to the first defendant's evidence.

Furthermore, the narration of the appellants pleadings would only support

the 2

nd

defendant's stand, which are contrary to the factual position.

Therefore, as rightly held by the learned Single Judge, these appellants are

not the bona fide purchasers for valuable consideration. At the same time,

they are entitled to work out their remedy by way of equity against the share

of the defendants 1 and 2, and in the final decree, the share of the defendants

1 and 2 has to be allotted to these appellants.

41. Before we conclude, we would like to recapitulate our findings:-

a. From the admission of the first defendant, it is amply clear

that there were savings while running the family, from the

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amount earned by the plaintiff and the defendants 2 to 4.

b. Though the first defendant pleads that she had generated

resources for the purchase of the suit property from the sale of

her jewels and silver vessels, the same found to be unbelievable

as she herself admits in Ex.P6 that the suit property was

purchased out of the funds provided by the 2

nd

defendant.

c. The transaction as a whole appears as a Benami Transaction.

However, the first defendant hold the property for the benefit of

the plaintiff and the defendants 2 to 4 in a fiduciary capacity.

Therefore, such transaction is saved by Section 4(3)(b) of the

Benami Transactions (Prohibition) Act.

d. As a result, the defence of the first defendant that the property

absolutely belongs to her has to be negatived.

e. Since the first defendant had also accumulated savings by way

of her unremunerative domestic work, she also becomes the

joint owner of the suit property along with the plaintiff and the

defendants 2 to 4. As a result, she is also entitled to have 1/5

th

shares.

f. In view of the above discussions, the plaintiff and the

defendants 1 to 4 are entitled to have 1/5

th

shares each.

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OSA.Nos.178 and 198 of 2004

g. Since the appellants purchased the property from the first

defendant and has paid the sale consideration to the 2

nd

defendant, they are entitled to have the 2/5

th

shares belongs to

the first and 2

nd

defendants, by way of equity.

42. In view of the above detailed discussions, these OSAs are partly

allowed as indicated above. There shall be no order as to costs.

Consequently, connected CMPs, if any are also closed.

(Dr.ANITA SUMANTH, J .) (C.KUMARAPPAN, J.)

28.07.2025

Index : Yes

Neutral Citation : Yes

Speaking order

kmi

To

The Sub Assistant Registrar,

Original Side,

High Court of Madras.

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OSA.Nos.178 and 198 of 2004

Dr.ANITA SUMANTH, J.

and

C.KUMARAPPAN, J.

kmi

Original Side Appeal Nos.178 and 198 of 2004

28.07.2025

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