Mohanan v. Yesoda — 1989 DIGILAW 148 (KER)

Judgment :- The defendants in O.S.No. 265 of 1978 on the file of the Munsiff s Court, Cannanore are the appellants. The suit relates to 36 cents of land comprised in R.S.No. 69/6 in Elavoor Amsom, Chowa desom. The plaintiff filed a suit alleging that the plaint schedule property belongs to her. There is a "samadhi sthanam nagam" on the eastern side of the plaint schedule property. The plaintiff claims title and possession of the entire 36 cents inclusive of this "samadhi stanam nagam". The plaintiff alleged that she had been in possession of the plaint schedule property for the last 50 years and the income from this property was set apart for the conduct of poojas and other ceremonies in the aforesaid samadhi stanam nagam. In 1967, an R.C.C. building was put up in the property at the place of worship according to the wishes of the v Gurunadhan". Religious ceremonies are being performed in the "samadhi". Plaintiff further alleged that the defendants have no title or possession over the property. After the filing of the written statement submitted by the defendants, plaintiff amended the plaint and added paragraph 5a to the plaint. An additional prayer for declaration was incorporated in the plaint. In para.5a of the plaint, plaintiff alleged that the document executed in favour of Chaliloth Krishnan on 4-12-1961 in respect of the plaint schedule property had not come into effect and as per that document the property was not intended to be conveyed to the said Krishnan and he never enjoyed or possessed the plaint schedule property. It is also alleged that the title deed, if any, of Krishnan was lost by adverse possession and limitation. 2. The defendants are the widow and son of Chaliloth Krishnan. They alleged that the plaint schedule property originally belonged to one Ramunni. He got the same in the partition effected as per final decree in O.S.No.123 of 1945. Ramunni died and his wife and children executed the sale deed in favour of Yesodha. The said Yesodha transferred the property on 4-12-1961 in favour of Krishnan, the husband of 1st defendant. Defendants also alleged that after the death of Krishnan the property devolved on the defendants and the plaintiff was never in possession of the property. Ramunni died and his wife and children executed the sale deed in favour of Yesodha. The said Yesodha transferred the property on 4-12-1961 in favour of Krishnan, the husband of 1st defendant. Defendants also alleged that after the death of Krishnan the property devolved on the defendants and the plaintiff was never in possession of the property. They also contended that the deceased Krishnan had constructed the "samadhi stanam nagam" in the plaint schedule property and after the death of Krishnan, the plaintiff and her children tried to trespass into the property. 3.After the filing of the suit, plaintiff died and her children were impleaded as legal representative of the deceased plaintiff. The Munsiff s Court decreed the suit in terms of the plaint and a permanent prohibitory injunction was issued against the defendants. Defendants filed appeal in before the Sub Court, Tellicherry and the learned Sub Judge held that the plaintiff had been in possession of the property and decree for permanent prohibitory injunction was confirmed. Defendants challenge the judgment and decree passed by the courts below. 4. The trial court as well as the lower appellate court found that the disputed property has been in the possession of the plaintiff. The finding regarding the possession has been entered on the basis of some documents produced by the plaintiffs. These documents showed that it was at the instance of P.W.I, the son of original plaintiff Madhavi, the "samadhi stanam nagam" was constructed in the eastern side of the property. On the basis of the documents produced by the plaintiff it was held that Krishnan, the husband of 2nd defendant had no possession over the land. Learned counsel for the appellants contended that the finding of the courts below is clearly illegal and the same is not sustainable especially in view of the provision of the Benami Transactions (Prohibition) Act of 1988, Act No. 45 of 1988. 5. Admittedly, the disputed plaint schedule property comprised in R.S.No. 69/6 of Chowadesomwas allotted to the heirs of one Chaliloth Ramunni as per final decree passed in O.S.No.123 of 1945. Chaliloth Ramunni died and the property devolved on his wife and children and they assigned the property as per Ext. A-11 dated 23-11-1961 to Yesoda, who is the additional 2nd respondent in the appeal. Yesoda is the daughter of plaintiff Madhavi. Thereafter, Yesoda transferred this property to her brother Krishnan as per Ext. Chaliloth Ramunni died and the property devolved on his wife and children and they assigned the property as per Ext. A-11 dated 23-11-1961 to Yesoda, who is the additional 2nd respondent in the appeal. Yesoda is the daughter of plaintiff Madhavi. Thereafter, Yesoda transferred this property to her brother Krishnan as per Ext. A12 dated 4-12-1961. The assignee Krishnan is the husband of 2nd defendant Janaki. On the date of Ext.A12 document, plaintiff Madhavi had purchased 36 cents of land under Ext. A10 document from the wife and children of Ramunni. Ext. A10 property is on the northern side of Ext. A12 property. The plaintiffs case is that both Exts. A10 and A12 documents were executed at the instance of plaintiff Madhavi and she paid consideration for both these transactions. Plaintiff would further say that Ext. All document, though executed in the name of Yesoda, her daughter, in feet consideration was paid by plaintiff. That seems to be the present case of the plaintiff. It is important to note that the plaintiff did not plead any such case in the plaint. However, by an amendment of the plaint, certain additional pleadings were incorporated and even then plaintiff did not specifically allege that plaintiff Madhavi purchased property in the name of Yesoda and that Ext. A12 also was executed at the instance of the plaintiff and that she paid consideration for that. The plaintiff only alleged that Krishnan never possessed or enjoyed this property and even before Ext. A12 sale deed, the property was in continuous enjoyment by the plain tiff along with her northern portion of the property as a single item. At the time of evidence P. W.1 specifically deposed that both Exts. All and A12 documents were executed by plaintiff Madhavi and plaintiff Madhavi paid consideration for the Ext. All document. P. W.I deposed that the property was never in the possession of Yesoda and Ext. A12 document was executed in the name of Krishnan as he was the eldest member of the family. In the cross examination he stated: (The substance of the same can be translated as follows: The plaintiff purchased the property in the name of Yesoda to avoid the property being purchased by strangers. This document was executed in the name of eldest member of the family in order to facilitate the construction of the temple. In the cross examination he stated: (The substance of the same can be translated as follows: The plaintiff purchased the property in the name of Yesoda to avoid the property being purchased by strangers. This document was executed in the name of eldest member of the family in order to facilitate the construction of the temple. It is not stated in the plaint that the property was purchased as benami. He had instructed so. Probably it might have been omitted). o. From the pleading and the evidence of the plain tiff, it is clear that the plaintiff has set up a case of benami and according to her Exts. All and A12 documents have not come into effect and these are sham transactions and the title still vested with her. The question that would arise for consideration is whether the present respondents, who are the legal representatives of the deceased plaintiff are en titled to raise such a plea in view of S.4 of the Benami Transactions (Prohibition) Act 1988 came into force on 19-5-1988. The relevant portion of S.4 reads as follows: "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 persons in whose name the property is held or against any other persons 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". It maybe noted that this Court in Velayudhan v. Rajeev 1988(2) KLT 369 = (AIR 1989 Ker. Case 12) =1988 (2) KLJ. 271) considered the scope and effect of S.4 of Benami Transactions (Prohibition) Act, 1988 on a pending suit and it was held: "The words 'no defence', convey an emphasis of extraordinary rigour they rope in all that is within the vision and in the horizon. The succeeding words, "shall be allowed in any suit, claim or action', are equally wide and equally sweeping in their effect and operation. The succeeding words, "shall be allowed in any suit, claim or action', are equally wide and equally sweeping in their effect and operation. The deprivation of a defence is not confined to a suit hereafter to be filed; it extends to the projected areas of a claim, or an already initiated action. The words " no defence shall be allowed' necessarily mean that no such defence shall be allowed by the court. The court, is therefore, bound to consider at every stage, to find out whether there is a defence of benami put forward before it. There is no option left to the court. Plainly, that duty is cast on the court to be discharged in suits hereafter to be instituted, when such a defence is raised. It is equally there when such a defence is noticed in suits already pending". I am in respectful agreement with the above said decision and if the provisions of the Benami Transactions (Prohibition) Act, 1988 are applied to the facts in this case, the plaintiffs plea must fail. Learned Counsel for the plaintiff-respondents contended that the plaintiff has not alleged any benami, but in fact, only alleged that Exts. All and A12 transactions are sham documents and that the title never passed to the assignee shown in those documents. Reliance was placed on the decision in Sree Meenakshi Mills v. I.T. Commr.(AIR 1957 SC 49). There the Supreme Court has defined the term'benami'. It was held: "The word "benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X ;is 'lie purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X ;is 'lie purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word "benami', is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that wheareas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid". Based on the above decision it was contended that the plaintiff had not set up any case of benami but Exts. All and A12 documents arc sham documents and have not come into existence. It was contended that Krishnan had not acquired any right over the property under Ext. A12 since that transaction is a sham transaction and the case pleaded by the plaintiff is not benami and this sort of plea is not prohibited by the provisions of the Benami Transactions (Prohibition) Act, 1988. 7. The above contention cannot be accepted. The specific case of the plaintiff Madhavis that she purchased the property in the name of Yesoda under Ext. All document. Therefore, according to the plaintiff, she is the real owner and Yesoda is only a benamidar. Plaintiffs further case is that Yesoda though executed Ext. 7. The above contention cannot be accepted. The specific case of the plaintiff Madhavis that she purchased the property in the name of Yesoda under Ext. All document. Therefore, according to the plaintiff, she is the real owner and Yesoda is only a benamidar. Plaintiffs further case is that Yesoda though executed Ext. A12 benami in favour of Krishnan, it was executed since Krishnan was the eldest member of the family and that the parties never intended to transfer the property in favour of Krishnan. This would show that the plaintiff wanted to set up a case of benami. Moreover, the present contention of the plaintiff that the transaction was not a benami transaction cannot be accepted in view of the definition of the "benami transaction" under S.2(a) of the said Act. S.2(a) reads as follows: "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person". Here the case is that the plaintiff paid consideration and that Krishnan never obtained the possession under Ext. A12 transaction. The plaintiff-respondents are not entitled to raise such a plea and the court cannot enforce any right against the defendants on that basis. This is clear from S.4 of the said Act. Therefore, the plea of the plaintiff that the property did not belong to Krishnan as per Ext. A-12 cannot be accepted. 8. The evidence in this case also would show that the plaintiff wanted to deny the rights of the defendants. The property was purchased from Yesoda by Krishnan in 1961. Admittedly Krishnan was having some business. Even during the last period of his life Krishnan was running a shop. After the death of Krishnan, the property devolved on his wife and son. The documents produced by the plaintiff would only go to show that the plaintiff and her children, who constructed the "samadhi stanam nagam" on the eastern side of the property. Krishnan being the son the plaintiff might have allowed Krishnan and others to construct the "samadhi stanam nagam" on the property. The defendants have produced documents to prove that they have purchased the tenancy right in respect of this property. There is also evidence to show that Krishnan was for sometime residing in the house of the plaintiff. The plaintiff was residing on the northern side of the property. The defendants have produced documents to prove that they have purchased the tenancy right in respect of this property. There is also evidence to show that Krishnan was for sometime residing in the house of the plaintiff. The plaintiff was residing on the northern side of the property. The Commission report also shows that there was some boundary in between the plaint schedule property and the northern property held by the plain tiff. The courts below was swayed by the plaintiffs documents. They would only show that the plaintiff and P.W.I spent some amount and actively participated in constructing the "samadhi stanam nagam". There is absolutely nothing in evidence to show that Krishnan gave up his rights in respect of this property. The trial court as well as the appellate court seriously erred in finding that the plaintiff was in possession of the property. After the death of plaintiff the property devolved on the defendants. Therefore the suit filed by the plaintiff is liable to be dismissed. I set aside the decree and judgment of the trial court and the lower appellate court. In view of the close relationship between the parties I order that they shall bear their respective costs. The appeal is allowed and the suit will stand dismissed.