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2000 DIGILAW 432 (MAD)

V. Seshammal & Others v. Andal Ammal

2000-04-12

K.NATARAJAN

body2000
Judgment : 1. The case is listed for admission. Defendants 2 to 13 are the appellants herein. The second appeal has been preferred against the judgment and decree, dated 8.11.1999 passed in A.S.No.62 of 1999 on the file of learned Principal District Judge Court, Virudhunagar at Srivilliputtur confirming the judgment and decree passed in O.S.No.503 of 1983 on the file of the Additional District Munsif, Srivilliputtur, dated 29.7.1999. 2. Theshort facts are: The respondent/plaintiff instituted the suit for declaration of her title to the plaint schedule property and for recovery of possession on the ground that she became the owner of the property by virtue of the settlement deed executed by her husband, which is marked as Ex.A-8. According to her, the first defendant, who is a close relative, was allowed to be in permissive occupation of the property and since he had questioned her title, it became necessary for her to institute the suit for declaration and for recovery of possession. The first defendant, since deceased, resisted the suit stating that the plaintiff is only ostensible owner of the property and the property has been purchased by him with his own funds in the name of the husband of the plaintiff, who is his brother-in-law, and therefore the plaintiff is not entitled to any of the reliefs claimed by her and she has to be non suited. In short, the first defendant claimed the property as his own and that the same has been purchased by him benami in the name of the husband of the plaintiff which had been denied by the plaintiff 3. The trial court framed necessary issues and on the evidence adduced by both the parties came to the conclusion that the property is the exclusive property of the husband of the plaintiff and the plaintiff became entitled to the same by virtue of Ex.A-8 and the benami pleaded by the first defendant was not proved and ultimately decreed the suit as prayed for. Pending trial, as the first defendant died, his legal Representatives defendants 2 to 13 have been impleaded. 4. Onappeal against the judgment and decree of the trial court, the Principal District Judge, on reappraisal of the evidence, concurred with the reasoning of the trial court, confirmed the judgment and decree of the trial court and dismissed the appeal. 5. Pending trial, as the first defendant died, his legal Representatives defendants 2 to 13 have been impleaded. 4. Onappeal against the judgment and decree of the trial court, the Principal District Judge, on reappraisal of the evidence, concurred with the reasoning of the trial court, confirmed the judgment and decree of the trial court and dismissed the appeal. 5. Thegrievance of the learned counsel for the appellants herein is both the courts below have not considered the evidence and particularly the fact that the original documents have been produced by the first defendant and therefore it is only benami transaction and both the courts committed an error in decreeing the suit. 6. It has been pointed out by the learned counsel for the other side that both the courts below have elaborately discussed the evidence and found that except the only circumstance that the original documents have been produced by the first defendant all the other ingredients are in favour of the plaintiff and, therefore, both the courts below are correct in decreeing the suit and no error of law has been committed. At this juncture, it is pertinent to point out that neither the plaintiff nor the defendants have taken objection regarding the Benami Transactions (Prohibition) Act, 1988 in their pleadings. However, the learned counsel for the appellants submitted that the said Act applies only to future transactions and not in respect the transactions earlier to the Act and in this case the transaction having occurred before the passing of the Act, he is entitled to plead benami and the said Act is not a bar. Even accepting the said contention, it is to be pointed out both the courts below have concurrently found that the transaction is not a benami transaction and the purchase has been made by the husband of the plaintiff and he had every right to settle the property in favour of his wife. The learned counsel for the respondent/plaintiff invited the attention of this Court to the fact that in the house-tax receipts the name of the respondent/plaintiff had been added and in Ex.A-1, which confirmed the substantial portion of the sale transaction the first respondent had signed as a witness and if it is a benami transaction the first defendant would not have done so and both the courts have considered the said fact. The fact of benami is only a question of fact and the same having become final, this Court cannot interfere with the concurrent findings of courts below regarding question of fact in the second appeal. I find there is substantial force in the above contention of the learned counsel for the respondent/plaintiff. The mere fact that High Court can come to a different conclusion on the evidence adduced by the parties is not a good ground to entertain the second appeal and interfere with the concurrent findings of both the courts below. I am of the view that no substantial question of law is involved and both the courts below have not committed any error of law or misread the evidence or omitted to consider the material facts available in the evidence. Hence it is not a fit case for admission. Accordingly, the second appeal is dismissed. No costs. Consequently, connected CMP Nos. are closed.