Telangana High Court
Smt.A.R.Hemavathy (Died) Per Lr A-2 vs A.D.Venkatesh on 12 March, 2026
Author: K. Lakshman
Bench: K. Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
AND
THE HONOURABLE SRI JUSTICE VAKITI RAMAKRISHNA REDDY
City Civil Court Appeal No. 291 of 2003
and
Civil Revision Petition Nos. 5194, 5329 and 6495 of 2005
DATE: 12.03.2026
City Civil Court Appeal No. 291 of 2003
Between:
Smt. A.R. Hemavathy (died) per LRs and others ... Appellants
And
A.D. Venkatesh ... Respondent
Civil Revision Petition No. 5194 of 2005
Between:
A.R. Jagannath and another ... Petitioners
And
A.D. Venkatesh and another ... Respondents
Civil Revision Petition No. 5329 of 2005
Between:
A.R. Jagannath and another ... Petitioners
And
A.D. Venkatesh ... Respondent
Civil Revision Petition No. 6495 of 2005
Between:
A.R. Jagannath and another ... Petitioners
And
A.D. Venkatesh ... Respondent
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CCCA_291_2003 batch
COMMON JUDGMENT:
(Per Honourable Sri Justice Vakiti Ramakrishna Reddy)
The present appeal, being C.C.C.A. No. 291 of 2003 is
preferred by the Appellant/Plaintiff against the Judgment and Decree
dated 09.06.2003 passed in O.S. No. 124 of 1999, on the file of the I
Additional Chief Judge, City Civil Court at Secunderabad, whereby
the suit filed by the appellant/plaintiff against the
respondent/defendant seeking partition in respect of the suit schedule
property, came to be dismissed with costs.
2. Inasmuch as the parties and the substantial questions arising for
consideration in the aforesaid City Civil Court Appeal as well as in the
connected Civil Revision Petition Nos.5194, 5329 and 6495 of 2005
are identical, all the matters were heard together and are being
disposed of by this common judgment.
3. For the sake of convenience and clarity, the parties shall
hereinafter be referred to as they were arrayed before the learned Trial
Court in C.C.C.A. No. 291 of 2003.
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I. BRIEF FACTS
4. The underlying suit in O.S.No.124 of 1999, out of which the
present pleadings arise was filed by the sole plaintiff (Ms.A.R.
Hemavathy) against the sole defendant (A. D. Venkatesh), who is her
younger brother, seeking partition of the plaint schedule property
bearing No.10-2-328, comprising Plot No.213 situated at Road No.8,
West Marredpally, Secunderabad, by dividing the same into two equal
shares and allotting one such share to the plaintiff with separate
possession.
5. The plaintiff (A.R. Hemavathy) and the defendant (A.D.
Venkatesh) are the children of late Saraswathi Bai, who died intestate
on 09.01.1963, leaving behind the plaintiff, the defendant, and their
father A. Devarajan, as her legal heirs. The plaint schedule property
was purchased by Saraswathi Bai in 1949.
6. After the demise of Saraswathi Bai, the plaintiff continued to
live in the suit property along with her father. Even after the defendant
moved to Bangalore in 1971, the plaintiff and her family took care of
their aged father till his death on 25.05.1993. The husband of the
plaintiff and later by her son made payments to her father and brother.
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7. The defendant claimed exclusive ownership of the suit property
based on a Will dated 22.10.1972 said to have been executed by his
father Devarajan. The said Will deed was produced by the defendant
during rent control proceedings and then as claimed by the plaintiff
that she came to know that the suit property originally belonged to her
mother and that she being a legal heir entitled to a share therein. The
plaintiff disputes the genuineness and validity of the said Will,
alleging fraud, suppression of material facts, and suspicious
circumstances.
8. Despite the plaintiff asserting her right, the defendant had
initiated eviction proceedings and is attempting to sell the property to
third parties, thereby threatening to deprive the plaintiff of her lawful
share in the suit schedule property. Hence, the suit for partition and
separate possession of the share of the plaintiff in the plaint schedule
property.
9. In response to the aforesaid plaint averments, the defendants
filed a written statement denying all the allegations made by the
plaintiff and contended that the suit schedule property did not belong
to the mother of plaintiff but was purchased by the father of the
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plaintiff, who, being a government servant, acquired the same in the
name of his wife as a benami transaction.
10. The defendant contended that his mother i.e., Saraswathi Bai
was a housewife with no independent source of income and had no
means to acquire the property. It is asserted that the plaintiff and her
family were residing in the suit property as tenants by paying rent of
Rs.1,000/- per month and denied the claim that such payments were
made as token amounts out of respect. The defendant by placing
reliance upon the Will dated 22.07.1972 executed by his father, has
stated that it is valid, genuine, and clearly establishes his exclusive
ownership over the suit property.
11. The defendant further contended that the plaintiff was aware of
the Will much prior to 1999 and falsely alleged fraud, concealment,
and suspicious circumstances only to claim a share in the property. It
is denied that the father suppressed the existence of other heirs or
played any fraud upon the plaintiff. Thus, the defendants prayed that
the suit for partition was not maintainable and liable to be dismissed.
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II. ISSUES FRAMED BY THE TRIAL COURT:
12. Basing on the above pleadings, the trial Court framed the
following issues for trial:
1) Whether the father of the plaintiff and defendant
purchased plaint schedule property in the benami name of the
mother of the plaintiff and the defendant?
2) Whether the plaintiff is estopped from questioning the
title of the defendant in view of her evidence as P.W.2 in RC.
No. 243 of 1984?
3) Whether the plaintiff is entitled to seek partition of
dwelling house without the defendant asking for partition?
4) To what share each of the parties are entitled to in plaint
schedule properties?
5) To what relief?
III. EVIDENCE:
13. During the course of trial, Plaintiff was examined as PW-1 and
Exhibits A1 to A7 were marked on her behalf and whereas, on behalf
of the defendants, DWs 1 and 2 were examined and Exs. B1 to B29
were marked.
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IV. FINDINGS OF THE TRIAL COURT:
14. The Trial Court, upon appreciation of oral and documentary
evidence, observed that although late Smt. Saraswathi Bai was shown
as the vendee under the sale deed dated 15.05.1949, the suit schedule
property was in fact purchased by late A. Devarajan as a benami
transaction in her name, which stood clearly established from the
recitals of Ex.A4 letter and the categorical assertions contained in
Ex.B27 i.e., Will and Ex.B29 the Codicil. The Trial Court further
observed that Saraswathi Bai had no independent means or stridhana
funds to acquire the property in her name and that Devarajan was the
absolute owner, who validly bequeathed the entire suit property to the
defendant under a duly proved, valid, and genuine Will Deed. It
further found that the plaintiff was fully aware of the Will Deed much
prior to the institution of the suit, had admitted the defendant’s
absolute ownership and her own status as a tenant in R.C. No.243/94,
and had taken advantage of the said Will Deed to secure eviction of
her tenant, thereby attracting the doctrine of approbate and reprobate.
Consequently, it was held that the plaintiff had no right or share in the
suit schedule property and was not entitled to seek partition, and
accordingly, the suit was dismissed with costs.
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15. Being aggrieved by the Judgment and Decree dated 09.06.2003
passed by the Trial Court, the Appellant/Plaintiff preferred the present
Appeal. During the pendency of the appeal, the sole appellant/plaintiff
passed away leaving behind her two children i.e., a son and a daughter
and accordingly, her son was brought on record as appellant No.2 by
virtue of Will dated 10.06.2000 as per the order dated 27.09.2012
passed by this Court in CCAMP No.435/2012.
16. Heard Sri Akella Sreenivas Rao, learned counsel for the
appellants and Sri Vedula Venkataramana, learned counsel for the
respondent/defendant and perused the record.
V. SUBMISSIONS OF THE PARTIES: A) Contentions of the Appellant/Plaintiff:
17. The learned counsel for the Appellant/Plaintiff contended that
the Trial Court has committed an error in accepting the plea of the
defendant that the suit schedule property was a benami purchase by
overlooking the statutory bar contained in the Benami Transactions
(Prohibition) Act, 1988, (for short ‘the Act’) especially when the suit
itself was instituted after the said Act came into force. The finding that
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the purchase under Ex. A3 in the name of Saraswathi Bai was benami
for the benefit of her husband is unsustainable.
18. The appellant further urged that under the well-recognised
doctrine of advancement, even if the money for purchasing was
provided by the husband, a purchase made in the name of the wife is
presumed to be for her benefit, and neither the husband nor persons
claiming through him are entitled to plead benami. Alternatively, it is
contended that the suit property being the matrimonial home, the wife
would be entitled to a half share in her own right, even assuming that
the husband purchased the property from his own funds.
19. The learned counsel for the Appellant/Plaintiff also contended
that in the absence of any witness having personal knowledge of the
sale deed of the year 1949, and when the Court itself observed that
neither party had such knowledge, the recitals of Ex. A3 sale deed
ought to have prevailed. The mutation of the name of father in
municipal records after the death of Saraswathi Bai does not amount
to an assertion of benami nature but rather acknowledges her title
during her lifetime, as no attempt was made to mutate the property in
the name of father while she was alive. A transaction which is genuine
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at its inception cannot be subsequently converted into a benami
transaction after the death of the ostensible owner.
20. The appellant/plaintiff contended that the reasoning that the
jewellery referred to therein was not proved to belong to Saraswathi
Bai is unsubstantiated, inasmuch as the jewellery is ordinarily
presumed to be the property of the wife and not the husband. Even
otherwise, Ex. A4, relied upon as an admission, could not have been
selectively used to support the defendant’s case, as statements made
by the father in his own favour are inadmissible under Section 32(3)
of the Evidence Act.
21. The learned counsel for the Appellant/Plaintiff further contends
that the Trial Court erred in placing undue reliance on the pleadings
and depositions in R.C. No.243/94 and in invoking the doctrine of
approbate and reprobate. The alleged admissions were made at a time
when the appellant was unaware of her mother’s title and were
adequately explained by contemporaneous correspondence, which
shows that both parties were attempting to create pressure to secure
eviction of a third-party tenant. The essential ingredients of estoppel
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are wholly absent. The Trial Court thus erred in upholding the Will
Ex. B27 and Codicil Ex. B29.
22. The learned counsel for the appellant/plaintiff in support of his
contentions placed reliance upon the decisions in Bajranglal Agarwal
v. Smt. Susheela Agarwal and others 1, Nand Kishore Mehra v. Sushila
Mehra2, Hemanth Satti v. Mohan Satti and others3, Lalsa Prasad
Singh v. Chanderwala and another4, Jagdish Chand Sharma v. Narain
Singh Saini and others5, Bhaiya Girija Datt Singh v. Gangotri Datt
Singh6, Kuppanna Gounder and others v. Peruma Gounder and
others 7, B. L. Sreedhar & others v. K.M. Munireddy & others 8, Ram
Chandra Singh v. Savitri Devi and others9, Nagubai Ammal and
others v. Shama Rao and others 10, Banarsi Das and others v. Kanshi
Ram and others11, R.S. Maddanappa v. Chandramma and others12,
Bawari Lal and others v. Sukhdarshan Dayal 13, Smt. Krishnawati v.
1
TSHC: CCCA No.62 of 2024 decided on 20.08.2024
2
(1995) 4 SCC 572
3
2013 (139) DRJ 391
4
2017 SCC Online Del. 10961
5
(2015) 8 SCC 615
6
AIR 1955 SC 346
7
1961 0 AIR (Mad) 511
8
2003 0 AIR (SC) 578
9
2003 0 Supreme (SC) 873
10
1956 0 Supreme (SC) 38
11
AIR 1963 S.C. 1165
12
1965 0 Supreme (SC) 73
13
AIR 1973 S.C. 814
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Shri Hans Raj14, Chhaganlal Keshavlal Mehta v. Patel Narandas
Haribai15, Tej Bhan Madan vs. II Additional District Judge and
others 16, A.V.G.P. Chettiar and Sons and others v. T. Palanisamy
Gounder17, Radhakrishna Yadav v. G. Kalavati Bai 18, J.J. Lal Pvt.
Ltd. and others v. M.R. Murali and another19, Vinay Kumar Soni v.
Vijay Kumar20, Vinay Eknath Lad v. Chiu Mao Chen 21, Budhu Lal v.
Mahabir Prasad & others22, Life Insurance Corporation of India v.
India Automobiles and Company and others23, Narasimha Murthy v.
Susheelabai and others 24, Sundari Dharmanna v. Narsu Bai and
another25, K.V. Usman and others v. Sangali Mohan Rao26,
Vinukonda Venkata Ramana and others v. Mootha Venkateshwara
Rao and others 27, J. Jagannatha Reddy and others v. J. Ravinder
Reddy and others 28, Vidyabai & others v. Padmalatha and another29,
14
1973 0 Supreme (SC) 390
15
(1982) 1 S.C.C. 223
16
(1988) 3 S.C.C. 137
17
A.I.R. 2002 S.C. 2171
18
2002 (5) A.L.T. 750
19
2002 0 AIR (SC)
20
2023 S.C.C. OnLine Del. 5660
21
(2019) 20 S.C.C. 182
22
1988 (2) R.C.J. 354
23
(1990) 4 S.C.C. 286
24
A.I.R. 1996 S.C. 1826
25
1997 (4) A.L.T. 803
26
2002 (2) An.W.R. 23 (A.P.)
27
2001 (5) A.L.T. 479 (F.B.)
28
2002 (6) A.L.T. 502 (D.B.)
29
2009) 2 S.C.C. 409
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Baldev Singh and others v. Manohar Singh and another 30, B.K.
Narayana Pillai v. Parameshwaran Pillai and another31, P. Kishore
Kumar v. Vittal K. Patkar 32 and Hussain Ahmed Choudhury v.
Habibur Rahman (dead) through LRs 33.
23. On the basis of the aforesaid submissions, the learned Counsel
for the appellant has prayed that, there being merit in the appeal, the
same may be allowed.
B) Contentions of the Respondent/Defendant:
24. In response, the learned counsel for the Respondent/Defendant
contended that though the sale deed dated 15.05.1949 stood in the
name of late Saraswathi Bai, the evidence on record clearly
establishes that the entire sale consideration was arranged and paid by
late A. Devarajan and that the property was purchased under benami
in the name of his wife, who had no independent source of income or
stridhana sufficient to acquire the same. The respondent further
contended that the bar under the Benami Transactions (Prohibition)
Act, 1988 has no application to the present case, as the transaction in
30
(2006) 6 S.C.C. 498
31
(2000) 1 S.C.C. 712
32
(2023) 14 S.C.R.796
33
(2025) INSC 553
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question took place in 1949 and the plea of benami is raised to explain
the real nature of title, which is permissible in law. It was argued that
the Trial Court correctly applied the settled tests for determining
benami transactions and rightly held that the burden placed upon the
defendant was duly discharged through Ex. A4 letter, Ex. B27 Will
Deed, Ex. B29 Codicil, and other contemporaneous conduct of late
Devarajan asserting absolute ownership over the suit schedule
property.
25. The learned counsel for the Respondent/Defendant contended
Ex. B27 Will and Ex. B29 Codicil were duly proved in accordance
with law by examining an attesting witness, and the evidence clearly
shows that the testator was in a sound and disposing state of mind.
The respondent/defendant urged that the appellant/plaintiff was fully
aware of the Will Deed much prior to the institution of the suit and
had, in fact, relied upon the same in R.C. No.243/94 by admitting the
absolute ownership of the defendant and her own status as a tenant.
26. The learned counsel emphasized that having approbated the
Will Deed and accepted the title of the defendant in the rent control
proceedings, the plaintiff is estopped from reprobating the same in the
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underlying original suit. The Trial Court was therefore, justified in
invoking the doctrine of approbate and reprobate. The respondent
further submitted that the plaintiff had slept over her alleged rights for
several decades despite clear knowledge of the father’s claim and
mutation of records. It is further contented by the Defendant that once
the Trial Court rightly held that the suit schedule property was the
absolute property of late Devarajan and that the Will Deed in favour
of the defendant is valid and binding, the appellant/plaintiff has no
right, title, or interest in the suit property and is not entitled to seek
partition. The dismissal of the suit with costs was therefore proper,
just, and calls for no interference by the Appellate Court and thus,
prayed that, there being no merit in the present appeal, the same
deserves to be dismissed.
VI. POINTS FOR DETERMINATION:
27. In the light of the rival pleadings, the findings recorded by the
Trial Court and the submissions advanced before this Court, the
following points arise for determination:
(i) Whether the purchase of the suit schedule property in the
name of Saraswathi Bai under the registered sale deed dated
15.05.1949 was a benami transaction?
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(ii) If the property is not benami, whether the Will dated
22.10.1972 allegedly executed by A. Devaraja, is true, valid and
binding, and whether confers exclusive ownership upon the
respondent?
(iii) Whether the appellant No.1/plaintiff, being a legal heir of
Late Saraswati Bai, is entitled to a share in the suit schedule property
and if so to what extent?
28. During the pendency of the above CCCA No. 291 of 2003, the
sole appellant/plaintiff namely A.R. Hemavathy, expired and her son
being her legal representative was brought on record as appellant No.2
by order dated 27.09.2012 in CCCAMP No.435/2012. The said legal
representative also preferred Civil Revision Petition Nos.5194, 5329
and 6495 of 2005, arising out of orders passed in Rent Control
Proceedings relating to portion of suit schedule property.
Accordingly, the following additional point arises for consideration:
iv) Whether the orders impugned in impugned in Civil
Revision Petition Nos.5194, 5329 and 6495 of 2005 suffer from
jurisdictional error, illegality, or material irregularity warranting
interference by this Court?
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29. Having regard to the nature of controversy and the interlinking
of the proceedings, this Court proposes to first take up Point No. (iv)
for consideration, which relates to the validity of the orders impugned
in Civil Revision Petition Nos.5194, 5329 and 6495 of 2005?
I. CRP No. 5194 OF 2005
30. CRP. No. 5194 of 2005 is filed by the Petitioners/Appellants
aggrieved by orders dated 20.08.2005 in R.A. No. 425 of 2000, ACJ
CSC Hyderabad dismissing the appeal in R.C. No. 46 of 1999 on the
file of Additional Rent Controller, Secunderabad.
31. The petitioners denied the landlord’s absolute title and disputed
the validity of the alleged Will and conveyance deed. They contended
that the property belonged to Smt. Saraswathi Bai, who died intestate,
making the second tenant a co-sharer, and thus the Respondent cannot
seek eviction alone. Whereas, the Respondent contended that he is the
absolute owner of the schedule premises by virtue of a Will Deed
dated 22.10.1972 and a registered conveyance deed dated 11.01.1997.
He submitted that the appellants secured alternative accommodation
after evicting their own tenant and are therefore liable for eviction
under Section 10(2)(v) of the Act.
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32. The Appellate Authority held that it cannot adjudicate questions
of title in a rent appeal. It was further held that probate of the Will is
not mandatory in Andhra Pradesh and cannot be a ground to refuse
eviction. Accordingly, the appeal was dismissed confirming the
eviction order passed in R.C. No. 46/99, granting two months’ time to
vacate and deliver the possession of the scheduled premises.
II. CRP Nos. 5329 AND 6495 OF 2005
33. Civil Revision Petition Nos. 5329 and 6495 of 2005 had been
preferred by the Petitioners/Appellants aggrieved by the Common
Order dated 16.02.2005 passed in I.A. No. 829 of 2004 and I.A. No.
830 of 2004 in R.A. No. 425 of 2000, on the file of the Court of the
Addl. Chief Judge, City Small Causes Court, Hyderabad, respectively.
34. I.A. No. 829 of 2004 was filed seeking amendment of the
counter to raise a plea that the rent control proceedings are not
maintainable as the petitioner is engaged in essential services and
whereas, I.A. No. 830 of 2004 was filed to receive additional evidence
in the appeal, including a certified copy of an Urdu sale deed and its
translation, in support of the proposed amendment.
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35. The petitioner No.1 contended that he was a doctor working in
NIMS and engaged in essential services notified by the Government,
and therefore eviction proceedings are not maintainable against him.
He submitted that his earlier counsel failed to raise this plea in the
counter and sought amendment to avoid prejudice. He also sought to
file additional documents to establish title, stating that the said
documents could not be secured earlier.
36. On the other hand, the respondent contended that he is the
absolute owner under a Will Deed and that the petitioner has no right
in the property. He urged that the applications were filed at a belated
stage when the matter was at the verge of disposal and no valid
grounds exist for amendment. He further contended that no sufficient
reason was shown for non-production of documents earlier and sought
dismissal of the applications.
37. The first appellate court held that the amendment sought by the
petitioner is a post-trial amendment, which cannot ordinarily be
permitted unless sufficient cause is shown for not raising the plea
earlier. The petitioner, being a literate doctor, cannot shift the blame
on his previous counsel. Hence, no sufficient grounds were made out
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to allow amendment of the counter at the appellate stage. With regard
to additional evidence, the Court held that the Gazette notification and
service certificate are irrelevant to the dispute, and the certified copy
of the sale deed of the year 1949 was within the knowledge of the
petitioner but not produced before the Rent Controller. Therefore, the
Court further observed that there were no grounds existed to receive
the documents as additional evidence. Accordingly, both I.A. Nos.
829 and 830 of 2004 were dismissed.
VII. ANALYSIS AND FINDINGS:
CRP Nos. 5194, 5329 AND 6495 OF 2005
38. Having considered the entire material on record, the respective
submissions of the learned counsels, and the scope of interference
under revisional jurisdiction, this Court finds no merit in any of the
three Civil Revision Petitions.
(i) CRP No. 5194 of 2005:
39. This Revision arises out of the dismissal of R.A. No. 425 of
2000 confirming the eviction order passed in RC No. 46 of 1999. The
primary contention of the petitioners was that the respondent is not the
absolute owner of the schedule premises and that complicated
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CCCA_291_2003 batchquestions of title, including the validity of the Will and alleged co-
ownership, arise for consideration. The Appellate Authority has
rightly held that in proceedings under the Rent Control Act, the Court
exercises limited jurisdiction and is not competent to adjudicate
intricate questions of title as in a regular civil suit. So long as the
relationship of landlord and tenant is established and the statutory
grounds are made out, eviction can be ordered.
40. The further contention regarding non-probate of the Will was
also rightly rejected, as probate is not mandatory in the State, and non-
probate by itself does not invalidate reliance on the Will in collateral
proceedings. The Appellate Authority, upon appreciation of evidence,
recorded findings that the denial of title was not bona fide and that the
tenants had secured alternative accommodation attracting the statutory
ground. No jurisdictional error, perversity, or material irregularity is
demonstrated so as to warrant interference of this Court. Hence, CRP
No. 5194 of 2005 is liable to be dismissed.
(ii) CRP Nos. 5329 and 6495 of 2005:
41. These two Revision Petitions arise out of the common order
dismissing I.A. Nos. 829 and 830 of 2004 in R.A. No. 425 of 2000.
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Both the I. A’s were filed by the Appellant No.2 in the C.C.C.A. No.
291 of 2003. The amendment sought in I.A. No. 829 of 2004 was
admittedly a post-trial amendment that too at the appellate stage,
seeking to introduce a fresh plea that the petitioner was engaged in
essential services and that eviction proceedings were not maintainable.
The Court below rightly observed that such an amendment cannot
ordinarily be permitted unless sufficient cause is shown for failure to
raise the plea earlier. The explanation that the previous counsel failed
to take the plea is not a satisfactory ground, particularly when the
petitioner is an educated professional fully aware of the proceedings.
The conduct of the petitioners throughout the proceedings indicates
delay and an attempt to protract the litigation.
42. By reason of the Civil Procedure Code (Amendment) Act, 2002
(Act 22 of 2002), the Parliament inter alia inserted a proviso to Order
VI Rule 17 of the Code, which reads as under:
“Provided that no application for amendment shall be
allowed after the trial has commenced, unless the court comes to the
conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.”
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43. In view of the proviso to Order VI Rule 17 of the CPC, as
inserted by Act 22 of 2002, it is clear that once the trial has
commenced, an amendment cannot be permitted unless the party
establishes that, despite exercising due diligence, such plea could not
have been raised earlier. In the present case, the petitioners failed to
demonstrate any such due diligence or unavoidable circumstances
preventing them from taking the plea at the appropriate stage before
the Rent Controller. Though it is alleged by the petitioner that his
previous counsel failed to raise this plea in the counter, the first
appellate Court rightly observed in the order that the petitioner being
literate Doctor cannot throw blame on his counsel. It is to be seen that
the petitioner subscribed his signature on the affidavit only after
understanding the contents of the affidavit and in such circumstances,
the petitioner cannot throw blame on his previous counsel. Hence,
the application for amendment, having been filed at a belated post-
trial stage without any satisfactory explanation, was rightly rejected by
the first appellate Court.
44. Insofar as I.A. No. 830 of 2004 is concerned, it was filed for
receiving additional evidence in the appeal, namely the certified copy
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of the sale deed dated 15.05.1949 (in Urdu) along with its translated
version, and certain other documents, in support of the plea sought to
be introduced by way of amendment.
45. This Court notes that the rent control proceedings in R.C No. 46
of 1999 were instituted in the year 1999 and Rent Controller has
passed an order dated 23.10.2000. Thus, the Appellants/petitioners
had sufficient opportunity during the pendency of the proceedings
before the Rent Controller to produce all relevant documents in
support of their case. The certified copy of the sale deed dated
15.05.1949, now sought to be introduced at the appellate stage, was
admittedly within their knowledge right from the date of rent control
proceedings. It was stated that the document in question was about 50
years old at the relevant point of time. However, the mere age of the
document cannot be a valid ground for its non-production before the
Rent Controller, especially when certified copies of such documents
are obtainable through due process. No material has been placed to
demonstrate that any diligent steps were taken prior to the order dated
23.10.2000 to secure and produce the said document. In the absence of
proof of due diligence and satisfactory explanation, the rejection of
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the application to receive the document as additional evidence is fully
justified and calls for no interference.
46. It is well settled that revisional jurisdiction is supervisory in
nature and cannot be invoked to substitute this Court’s view for that of
the subordinate Court unless there is patent illegality, perversity, or
failure to exercise jurisdiction. The revision petitioners failed to
establish that the impugned order suffers from error apparent on the
face of the record. Thus, the impugned orders are reasoned and are
good in law.
Consideration of Civil Revision Petitions:
47. CRP Nos.5194, 5329 and 6495 of 2005 arise from orders
passed in rent control proceedings concerning tenants occupying
portions of the property.
48. The scope of revisional jurisdiction under Section 115 CPC is
limited to cases involving jurisdictional error or material irregularity.
49. The orders challenged do not disclose any such infirmity.
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50. The rent control authorities rightly confined their enquiry to the
landlord-tenant relationship without adjudicating complicated
questions of title.
51. The refusal to permit amendment and additional evidence does
not suffer from illegality.
52. Accordingly, CRP Nos. 5194, 5329 and 6495 of 2005 are liable
to be dismissed.
53. Having disposed of connected CRP Nos. 5194, 5329 and 6495
of 2005, this court now proceeds to examine CCCA No.291 of 2003
on its own merits.
(iii) CCCA No. 291 of 2003
54. We have carefully considered the rival submissions advanced
by the learned counsel for the Appellant/Plaintiff and
Respondent/Defendant and also perused the entire record of the case,
including the pleadings, oral evidence of PW1 and DWs 1 & 2 and the
documentary evidence under Exs. A1 to A7 along with Exs. B1 to
B29.
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55. The factual background having been noticed above, the
controversy between the parties centres around the true nature of the
transaction under which the suit schedule property was purchased.
While the appellant asserts that the property purchased in the name of
Saraswathi Bai constituted her absolute property and that upon her
death it devolved equally upon her legal heirs, the respondent seeks to
characterise the purchase as a benami transaction made in her name
for the benefit of A. Devarajan and claims exclusive rights under a
Will allegedly executed by him. The resolution of this controversy
necessarily requires examination of the principles governing benami
transactions, the evidentiary value of registered conveyances, and the
legal consequences flowing from succession under the Hindu
Succession Act.
RIVAL SUBMISSIONS:
56. Learned counsel for the appellant contended that the Trial Court
committed a manifest error in accepting the plea of benami in the
absence of any convincing evidence. It was submitted that the
property stands in the name of Saraswathi Bai under a registered
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conveyance and therefore a strong presumption arises in favour of her
ownership.
57. Learned counsel appearing for the respondent supported the
judgment of the Trial Court contending that the entire consideration
for the purchase of the property was paid by A. Devarajan and that
Saraswathi Bai did not possess an independent source of income.
ANALYSIS AND DISCUSSION
Point No. (i)
A. The Jurisprudential Foundation of Benami Transactions
58. The law relating to benami transactions occupies a delicate
position within Indian property jurisprudence. On the one hand, the
law recognises that transactions may, in form, vest title in one person
while the beneficial interest is claimed by another. On the other hand,
such arrangements, by their very nature, carry the potential to obscure
real ownership and defeat legitimate claims.
59. It is for this reason that courts have consistently approached
pleas of benami with caution. The law does not prohibit the assertion
of real ownership behind an ostensible title; however, it insists upon a
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high threshold of proof to ensure that apparent titles evidenced by
solemn documents are not lightly displaced. The Privy Council in
Gopeekrist Gosain v. Gungapersaud Gosain 34 laid the foundational
principle that the burden of proving that a transaction is benami lies
upon the person who asserts it. This principle is not merely
evidentiary but is rooted in the need to preserve certainty in
transactions concerning immovable property.
B. The Governing Judicial Test
60. The modern articulation of the law is found in the decision of
the Honourable Supreme Court in Jaydayal Poddar v. Bibi Hazra 35,
where the Court held that the determination of whether a transaction is
benami is essentially one of intention, to be inferred from surrounding
circumstances.
61. The Court identified a set of guiding factors, including the
source of consideration, possession, custody of title deeds,
relationship between the parties, motive, and subsequent conduct.
These factors are not exhaustive, nor do they operate as rigid criteria;
34
(1854) 6 MIA 53
35
1974 AIR 171
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they are indicia through which the Court discerns the real nature of the
transaction.
62. Crucially, the Supreme Court cautioned that no single factor is
decisive. The inquiry is holistic, and the conclusion must emerge from
a cumulative assessment of all relevant circumstances.
C. Burden and Standard of Proof:
63. The insistence of the law on strict proof in cases of alleged
benami is neither technical nor incidental. In Valliammal v.
Subramaniam 36, the Honourable Supreme Court reaffirmed that the
burden rests heavily upon the person asserting benami and must be
discharged by evidence that is clear, cogent and convincing.
64. This heightened standard is justified by the serious
consequences that follow from displacing the apparent title. As held in
Binapani Paul v. Pratima Ghosh 37, courts must guard against
substituting conjecture for proof, particularly where registered
documents confer ostensible ownership.
36 2004 (7) SCC 233 37 AIR 2008 SUPREME COURT 543 31 KL, J & VRKR, J CCCA_291_2003 batch D. Statutory Evolution and Public Policy
65. The enactment of the Benami Transactions (Prohibition) Act,
1988 marks a legislative shift towards discouraging concealed
ownership structures. The statute reflects a broader public policy
against opacity in property transactions.
66. The Constitution Bench in Union of India v. Ganpati Dealcom
Private Limited 38 underscored that the legislative intent is to promote
transparency and prevent misuse of benami arrangements. While the
statute operates prospectively, its underlying rationale reinforces the
judicial approach of strict scrutiny.
67. Therefore, even in cases governed by pre-statutory law, courts
must remain cognizant of the inherent risks associated with benami
claims and insist upon strict compliance with evidentiary standards.
E. Presumption Attached to Registered Conveyances:
68. A registered sale deed is not a mere piece of evidence; it is a
formal declaration of title recognised by law. Such a document carries
with it a presumption of validity and correctness.
38
MANU/SC/1133/2024
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69. In Thakur Bhim Singh v. Thakur Kan Singh 39, the Honourable
Supreme Court held that the apparent title arising from a registered
instrument cannot be displaced except by strong and convincing
evidence. This presumption forms a cornerstone of property law,
ensuring certainty and stability in transactions.
F. Application to the Present Case
70. The registered sale deed (Ex.A1) unequivocally records
Saraswathi Bai as the purchaser. There is no recital indicating that the
transaction was undertaken on behalf of another or that the property
was to be held for the benefit of any third party.
71. The respondent’s case rests substantially on the assertion that
the consideration for the purchase was furnished by A. Devarajan.
Even if such assertion is assumed to be correct, it does not, by itself,
establish that the transaction was benami.
72. The law is well settled that the source of consideration, though
relevant, is not determinative. To elevate it to a decisive factor would
be to disregard the cumulative test mandated by Jaydayal Poddar’s
case (supra).
39
AIR 1980 SC 727
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73. Significantly, there is no evidence to show that A. Devarajan
exercised rights of ownership over the property during the lifetime of
Saraswathi Bai. The absence of such assertion is inconsistent with the
hypothesis of beneficial ownership.
74. Equally, the respondent has failed to establish custody or
control over the title deeds. In transactions of this nature, possession
of title documents often furnishes an important indicator of ownership.
75. The relationship between the parties, being that of husband and
wife, is a relevant circumstance but does not give rise to any
presumption of benami. It must be assessed in conjunction with other
factors, none of which support the respondent’s case.
76. No plausible motive has been demonstrated for adopting a
benami arrangement. In the absence of any discernible reason for
concealing ownership, the plea lacks inherent probability.
77. The conduct of the parties, both prior and subsequent to the
transaction, does not indicate that the property was treated as
belonging to A. Devarajan.
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G. Error in the Approach of the Trial Court:
78. The scrutiny of the judgment of the learned Trial Court reveals
that its conclusion is predominantly anchored in a singular
circumstance, namely, that the consideration for the purchase of the
suit property was allegedly furnished by A. Devarajan. The learned
Trial Court appears to have treated this circumstance as determinative
of the nature of the transaction.
79. Such an approach, in the considered view of this Court, suffers
from a fundamental misdirection in law. The jurisprudence governing
benami transactions, as consistently articulated by the Honourable
Supreme Court, mandates that no single factor, howsoever weighty,
can be elevated to a position of exclusivity so as to override the
cumulative assessment required.
80. The emphasis placed by the learned Trial Court on the source of
consideration, to the exclusion of other equally relevant factors such
as possession, custody of title deeds, intention, and subsequent
conduct, reflects a fragmented appreciation of evidence rather than a
holistic evaluation. This runs contrary to the ratio in Jaydayal Poddar,
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(supra) which requires a synthesis of circumstances rather than
isolation of one.
81. More significantly, the learned Trial Court failed to engage with
the legal presumption that attaches to a registered conveyance. A
registered sale deed, executed in accordance with law, is not merely
evidentiary in character but constitutes a formal declaration of title.
The displacement of such title requires a degree of proof that is
commensurate with the sanctity attached to the instrument.
82. The failure to accord due weight to this presumption has
resulted in a reversal of the burden of proof. Instead of requiring the
defendant to establish benami by clear and convincing evidence, the
learned Trial Court appears to have implicitly called upon the plaintiff
to justify the ostensible title. Such inversion of burden is
impermissible in law.
83. The learned Trial Court also did not adequately consider the
absence of contemporaneous evidence supporting the plea of benami.
In matters involving immovable property, where transactions are
ordinarily documented, the absence of any written acknowledgment,
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declaration, or conduct indicative of beneficial ownership assumes
considerable significance.
84. Furthermore, the learned Trial Court failed to examine the
conduct of the parties over an extended period. The law attaches
considerable importance to how parties have treated the property in
reality, as such conduct often furnishes the most reliable indicator of
intention. The absence of any assertion of ownership by A. Devarajan
during the lifetime of Saraswathi Bai ought to have weighed heavily
against the plea of benami.
85. The cumulative effect of these omissions is that the finding of
the learned Trial Court is not merely a possible alternative view, but
one that is vitiated by a misapplication of settled legal principles and a
misappreciation of material evidence.
86. In Nand Kishore Mehra‘s case (supra) the Honourable Supreme
Court held as under:
“6. Sub-section (1) of Section 3, as seen, prohibits a
person from entering into any benami transaction. Sub-section (3) of
Section 3, as seen, makes a person who enters into a benami
transaction liable for punishment. Section 5 makes properties held
benami liable for acquisition without payment of any amount. But,
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CCCA_291_2003 batchwhen Sub-section (2) of Section 3 permits a person to enter into a
benami transaction of purchase of property in the name of his wife
or unmarried daughter by declaring that the prohibition contained
against a person in entering into a benami transaction in Sub-
section (1) of Section 3, does not apply to him, question of punishing
the person concerned in the transaction under Sub-section (3)
thereof or the question of acquiring the property concerned in the
transaction under Section 5, can never arise, as otherwise the
exemption granted under Section 3(2) would become redundant,
what we have said of the person and the property concerned in Sub-
section (2) of Section 3 in relation to non-applicability of Section
3(3) and Section 5 shall equally hold good for nonapplicability of
the provisions of Sub-sections(1) and (2) of Section 4 in the matter of
filing of the suit or taking up the defence for the self same reason.
Further, we find it difficult to hold that a person permitted to
purchase a property in the name of his wife or unmarried daughter
under Sub-section (2) of Section 3 notwithstanding the prohibition to
enter into a benami transaction contained in Sub-section (1) of
Section 3 cannot enforce his rights arising therefrom, for to hold so
would amount to holding that the Statute which allows creation of
rights by a benami transaction also prohibits the enforcement of
such rights, a contradiction which can ever be attributed to a
Statute. If that be so, there can be no valid reason to deny to a
person, enforcement of his rights validly accrued even in the cast
acquired by purchase of property in the name of his wife or
unmarried daughter, by making applicable the prohibition contained
in respect of filing of suits or taking up of defences imposed in
respect of benami transactions in general by Sub-sections(1) and (2)
of Section 4 of the Act. But, it has to be made clear that when a suit
is filed or defence is taken in respect of such benami transaction
involving purchase of property by any person in the name of his wife
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CCCA_291_2003 batchor unmarried daughter, he cannot succeed in such suit or defence
unless he proves that the property although purchased in the name
of his wife or unmarried daughter, the same had not been purchased
for the benefit of either the wife or the unmarried daughter, as the
case may be, because of the statutory presumption contained in Sub-
section (2) of Section 3 that unless a contrary is proved that the
purchase of property by the person in the name of his wife or his
unmarried daughter, as the case may be, was for her benefit.
7. Therefore, our answer to the question under consideration is
that neither the filing of a suit nor taking of a defence in respect of
either the present or past benami transaction involving the purchase
of property by a person in the name of his wife or unmarried
daughter is prohibited under Sub-sections (1) and (2) of Section 4 of
the Act.
8. Coming to the facts of the case on hand, the plaintiff had
filed the sit in the High Court seeking relief in respect of properties
alleged to have been purchased benami in the name of the
defendant-his wife. A learned Single Judge rejected the application
filed by the defendant in that suit seeking rejection of the plaint on
the ground that the suit was barred under Section 4 of the Act. The
order of rejection of that application was appealed against by the
defendant in a First Appeal filed in the same court. A Division Bench
of the High Court reversed the order of the learned Single judge and
granted the application of the defendant made in the suit seeking
rejection of the plaint. It is that order which is now questioned by the
plaintiff-husband in this appeal. Since the plaintiff is the husband
who had the right to enter into a benami transaction in the matter of
purchase of property in the name of his wife or unmarried daughter,
as we have held earlier, he is entitled to enforce his rights in the
properties concerned if he can succeed in showing that he had
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CCCA_291_2003 batchpurchased than benami in the name of his wife. But in view of the
statutory presumption incorporated in Sub-section (2) of Section 3 of
the Act, he can get relief sought in the suit only if he can prove that
the properties concerned had not been purchased for the benefit of
the wife, even if he succeed in showing that the consideration for the
purchases of the properties had been paid by him.”
87. Even in the instant case, the defendant failed to establish that
the subject property was not purchased for the benefit of his wife.
88. Even otherwise, since the property was purchased in the name
of Saraswathi Bai, her right under Section 14(1) of the Hindu
Succession cannot be diluted by the Benami Transaction Act. In
Hemant Satti‘s case (supra) the High Court of Delhi held as under:
“12. Section 14 of the HSA reads as under:
14. Property of a female Hindu to be her absolute
Property–
(1) Any property possessed by a Female Hindu, whether
acquired before or after the commencement of this Act,
shall be held by her as full owner thereof and not as a
limited owner.
Explanation.–In this sub-section, “property” includes both
movable and immovable property acquired by a female
Hindu by inheritance or devise, or at a partition, or in lieu
arrears of maintenance, or by gift from any person,
whether a relative or not, before, at or after her marriage,
or by her own skill or exertion, or by purchase or by
prescription, or in any other manner whatsoever, and also
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any such property held by her as stridhana immediately
before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any
property acquired by way of gift or under a Will or any
other instrument or under a decree or order of a civil
Court or under an award where the terms of the gift, will
or other instrument or the decree, order or award
prescribe a restricted estate in such property.
15. The collective reading of both provisions makes the
following position clear:
(i) The right under Section 14(1), HSA accruing to a Hindu
female in respect of the property in her possession is
absolute and untrammelled. It includes property that
comes to her through acquisition or “in any other manner
whatsoever”, and not limited to purchase of the property.
She is free to deal with the property in any manner which
she pleases.
(ii) The position under Section 3(2), BTA can be
harmonised with Section 14, HSA. Section 3(2), BTA does
not dilute the right of a Hindu female to her property
under Section 14(1), HSA. It is only where it is able to be
proved under Section 3(2), BTA that the property
purchased by the husband of the Hindu female in her name
was not for her benefit, could a challenge to her absolute
right thereto be entertained.
(iii) However, in order to prove such a defence, it has to be
pleaded, in the first place, to be pleaded.”
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H. Re-appreciation of Evidence by the Appellate Court:
89. It is well settled that an appellate court is entitled, and indeed
duty-bound, to re-appreciate evidence where the conclusions of the
Trial Court are shown to be contrary to law or based on an erroneous
application of legal principles.
90. In the present case, the re-appreciation of evidence must
proceed on the correct legal foundation, namely, that the burden of
establishing benami lies upon the respondent and that such burden
must be discharged by clear, cogent, and convincing evidence.
91. Upon such re-appreciation, the evidentiary position may be
summarised thus:
(i) The title deed stands in the name of Saraswathi Bai;
(ii) There is no documentary evidence indicating benami character;
(iii) There is no proof of exclusive possession or enjoyment by A.
Devarajan;
(iv) There is no evidence of custody of title deeds with him;
(v) There is no assertion of ownership during the lifetime of the
ostensible owner;
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(vi) There is no discernible motive for adopting a benami
arrangement.
92. Each of the above circumstances, when viewed individually,
fails to support the plea of benami. When viewed cumulatively, they
decisively negate such a plea.
93. The respondent’s case rests essentially on inference rather than
evidence. However, in matters of this nature, inference cannot
substitute proof, particularly where the effect would be to displace a
registered title.
I. Doctrine of Presumption and Protection of Title:
94. The law relating to property places a premium on certainty of
title. Registered conveyances serve as the foundation of such
certainty, enabling parties to transact with confidence and security.
95. To permit such title to be displaced on slender or speculative
grounds would introduce instability into property relations and
undermine public confidence in registered transactions.
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96. It is for this reason that courts have consistently insisted upon a
high standard of proof in cases alleging benami. The presumption in
favour of the apparent owner is not a mere procedural device, but a
substantive safeguard against uncertainty and fraud.
97. In the present case, the respondent/defendant has failed to rebut
this presumption. The evidence adduced falls short of the threshold
required to displace the apparent title vested in Saraswathi Bai.
J. Finding on the Nature of Transaction:
98. Upon a comprehensive and cumulative evaluation of all
relevant factors, this Court arrives at the conclusion that the
transaction in question cannot be characterised as benami.
99. The registered sale deed executed in favour of Saraswathi Bai
represents the true and real nature of the transaction, and there is no
legal basis to treat her as a mere name-lender.
100. The finding of the learned Trial Court to the contrary is
therefore liable to be set aside.
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K. Consequences of the Finding:
101. Once it is held that Saraswathi Bai was the absolute owner of
the property, the legal consequences of her death must be determined
in accordance with the statutory framework governing succession.
102. The evidence on record establishes that she died intestate,
leaving behind her husband and two children.
103. Under the Hindu Succession Act, 1956, these heirs fall within
Class – I and are entitled to succeed simultaneously and equally.
104. The scheme of the Act embodies a principle of equality in
succession, ensuring that each heir acquires an equal share in the
estate of the deceased.
105. Accordingly, the property devolves in equal shares upon the
husband and the two children, each acquiring a one-third undivided
interest.
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Point No. (ii)
Effect of the Testamentary Instrument:
106. The respondent has placed reliance upon a Will allegedly
executed by A. Devarajan. The legal effect of such Will must be
examined in the context of the findings recorded herein.
107. Even assuming, without deciding, that the Will is validly
executed and proved, it can operate only upon the interest that vested
in the testator. It is a settled principle of law that a co-owner cannot
bequeath property beyond his own share. Any testamentary
disposition in excess of such share is ineffective to that extent.
Therefore, the Will relied upon by the respondent cannot confer
exclusive ownership over the entire property, nor can it defeat the
statutory rights of the other heirs.
108. Accordingly, Point No. (ii) is answered.
Point No. (iii)
Succession under the Hindu Succession Act:
109. Once it is held that the property belonged to Saraswathi Bai,
the consequences of her death must necessarily follow.
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110. It is not in dispute that she died intestate leaving behind her
husband and two children.
111. Under the Hindu Succession Act, 1956, the property devolves
equally upon her heirs.
112. The Honourable Supreme Court in Vineeta Sharma v. Rakesh
Sharma40 emphasised that the statutory scheme of succession under
Hindu law must be applied in a manner that advances equality in
matters of inheritance.
113. Applying the statutory scheme of succession, the husband and
the two children each acquired equal share.
114. Each of them therefore acquired one-third undivided share in
the suit schedule property.
Effect of Testamentary Disposition
115. The respondent relies upon the Will dated 22.10.1972 executed
by A. Devarajan.
116. Even assuming the Will to be valid, it can operate only to the
extent of the share belonging to the testator.
40
AIR 2020 SC 3717
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117. A co-owner cannot bequeath property beyond his own share so
as to defeat the rights of the other heirs.
118. The appellant is therefore entitled to one-third share in the suit
schedule property. Accordingly, Point No. (iii) is answered in favour
of the appellant to the extent indicated above.
CONCLUSIONS:
119. The plea of benami raised by the respondent is unsupported by
convincing evidence.
120. The registered sale deed executed in favour of Saraswathi Bai
must therefore be given full legal effect.
121. Upon her death intestate the property devolved equally upon her
husband and two children each, therefore acquired one-third share in
the property.
122. The Will executed by A. Devarajan could operate only with
respect to his one-third share.
RESULT
123. The City Civil Court Appeal No.291 of 2003 is partly allowed.
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124. The judgment and decree dated 09.06.2003 in O.S. No.124 of
1999 passed by the learned I Additional Chief Judge, City Civil Court
at Secunderabad are set aside.
125. The appellant No.2, who is one of the legal representatives of
appellant No.1/plaintiff, was brought on record by virtue of Will dated
10.06.2000 as per the order dated 27.09.2012 in CCAMP
No.435/2012, is entitled to one-third (1/3rd) share in the suit schedule
property.
126. A preliminary decree for partition shall be drawn accordingly.
127. CRP Nos.5194, 5329 and 6495 of 2005 are dismissed.
128. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
_________________
K. LAKSHMAN, J.
__________________________________
VAKITI RAMAKRISHNA REDDY, J.
Date: 12.03.2026
AS