Research › Search › Judgment

Kerala High Court · body

2011 DIGILAW 234 (KER)

Krishnankutty v. Unnikutty

2011-03-03

S.S.SATHEESACHANDRAN

body2011
Judgment :- The 4th defendant in O.S.No.166 of 1987 on the file of the Munsiff-Magistrate Court, Ponnani, is the appellant. Suit was one for recovery of possession. Concurrent decision rendered by the two courts below in favour of the plaintiffs upholding their claim for recovery of possession over the property on the strength of their title, is assailed in this second appeal. 2. Plaintiffs and the 6th defendant in the suit are the children of one Kumaran, and defendants 1 to 5 are the children and wife of Kunhan, the younger brother of the aforesaid Kumaran. Plaintiffs claimed title over the suit property, having an extent of 44 cents, alleging that their father Kumaran had obtained the property under Ext.A3 Kanam assignment deed, the original of which was exhibited as Ext.B1, in his favour by the jenmi, Arangathavalappil Kunhu, in the year 1949. Admittedly, there was a previous suit for injunction over the suit property instituted by the plaintiffs and the 6th defendant together against one Kunhan, the predecessor of defendants 1 to 5 in the present suit. That suit was dismissed and the decision thereof, which was challenged upto this Court, had been confirmed. Alleging that the defendants had committed trespass over the property during the pendency of the previous suit, the plaintiffs filed the present suit for recovery of possession with mesne profits. Defendants 1 to 5 filed a joint written statement, in which, resisting the claim for recovery of possession, they contended that the property had been orally leased to their predecessor, Kunhan, and, later, while he continued in possession and enjoyment, an assignment deed over the property was got executed in the name of Kumaran as his benami. The funds for purchase of the leasehold was provided by Kumaran, and, therefore, the deed was taken in his name on agreement between Kumaran and Kunhan that on payment of that sum, the property would be conveyed to Kunhan. Though the entire amount had been repaid to Kumaran by Kunhan, the lease was not assigned in favour of Kunhan as agreed upon. Kunhan, who continued in possession and enjoyment, got assignment of his tenancy right over the property, and a purchase certificate had been issued in his favour by the Land Tribunal. Though the entire amount had been repaid to Kumaran by Kunhan, the lease was not assigned in favour of Kunhan as agreed upon. Kunhan, who continued in possession and enjoyment, got assignment of his tenancy right over the property, and a purchase certificate had been issued in his favour by the Land Tribunal. An alternate plea was also raised contending that Kunhan and his successors (the defendants) by their continuous possession which was hostile to that of Kumaran and his successors, have prescribed title over the property by adverse possession. 3. The trial in the suit proceeded first with determination of the question of title to the property canvassed by the plaintiffs, which was disputed by the defendants, and a finding thereof arrived in favour of the plaintiffs a reference was then made to the Land Tribunal to examine the claim of tenancy set up over the suit property by them, adopting the procedure laid down by this Court in Chacko Kochu v. Abraham (1977 KLT 868), which had been followed, then, in the matter of reference under Section 125 (3) of the Kerala Land Reforms Act in cases where the title was disputed. The Land Tribunal entered a finding on the reference made that there was no tenancy arrangement between the jenmi Arangathavalappil Kunhu with Kunhan, the predecessor of the defendants, before the execution of Ext.B1 deed, and the claim of tenancy right canvassed by the defendants over the property was found against. Negativing the tenancy right claimed by the defendants as not proved, the Land Tribunal held the tenancy right over the property in favour of Kumaran, predecessor of the plaintiffs. Reference being returned with such finding, suit was decreed allowing the plaintiffs to recover the property from the defendants. In the appeal preferred by the defendants, the lower appellate court, after reappraisal of the materials tendered in the case, concurring with the view formed by the trial court, confirmed the decree granted in favour of the plaintiffs negativing the challenges raised. In the appeal preferred by the defendants, the lower appellate court, after reappraisal of the materials tendered in the case, concurring with the view formed by the trial court, confirmed the decree granted in favour of the plaintiffs negativing the challenges raised. Concurrent decision so rendered by the two courts below is impeached in the second appeal by the defendants setting forth a challenge that the contention raised by them that Ext.B1 lease assignment deed was taken by the predecessor of the plaintiffs as a trustee on behalf of and for the benefit of his brother Kunhan, the predecessor of the defendants, and this was a case where Section 92 of the Indian Trusts Act has application, was not considered nor analysed in the proper perspective by both the courts below and it has resulted in miscarriage of justice. 4. The following substantial questions of law have been raised for hearing in the appeal: 1. Is the court below justified in finding that there is no sufficient pleading available in the written statement for raising an issue with respect to the applicability of Section 92 of the Trust Act in this matter? 2. Is the court below justified in finding that in a case where Section 92 of the Trust Act is applicable another registered document is necessary for creation of a trust? 3. Is the court below justified in finding that bar under Section 92 of the Evidence Act is applicable in this case and the appellant is not entitled to adduce evidence to the effect that Section 92 of the Trust Act is applicable as far as Ext.A1 assignment deed is concerned? 4. Are not the judgments and decrees of the courts below vitiated for not properly appreciating the evidence both oral and documentary available in this case? 5. The learned counsel for the appellants conceding that the challenge raised by the defendants that Ext.B1 deed was a benami transaction, to resist the title over the property with Kumaran, the predecessor of the plaintiffs, was no longer available to them in view of the advent of the Benami Transactions (Prohibition) Act, 1988, for short the ‘Act’, contended that the courts below were not justified in holding that no case had been made out by the defendants in their written statement over the applicability of Section 92 of the Indian Trusts Act to the facts of the case. The essential particulars to make out such a defence are borne out by the contentions raised in the written statement, and further, it had been pressed into service before the trial court and also the lower appellate court, but both the courts, without adverting to the evidence tendered in the case, according to the counsel, erroneously concluded that a defence under Section 92 of the Indian Trusts Act was not available to the defendants. Section 7 of the ‘Act’ no way affects the rights enshrined under Sections 88 and 92 of the Indian Trusts Act, and so much so, the challenge made that Ext.B1 deed was only a benami transaction no way prevented the defendants from canvassing the defence that Ext.B1 deed was taken as a trustee on behalf of Kunhan by his brother Kumaran, the predecessor of the plaintiffs, according to the counsel. Reliance is placed by the counsel on P.V. Sankara Kurup v. Leelavathy Nambiar (AIR 1994 SC 2694) to contend that the plea of benami raised, or the applicability of the provisions of the ‘Act’, would not stand in the way of the defendants in sustaining the defence under Section 92 of the Indian Trusts Act. 6. Perusing the judgments rendered by both the courts below with reference to the submissions made by the learned counsel for the appellants, I find, the defence that was sought to be projected under Section 92 of the Indian Trusts Act, most probably, for the reason that after the institution of the suit the Act had been brought into force and a challenge that Ext.B1 was a benami transaction was no longer available to the defendants, was rightly and correctly appreciated with reference to the pleadings of the case and also the legal principles applicable, to conclude that challenge was devoid of any merit. I have gone through the written statement of the defendants to examine the merit of the challenge whether any defence had been set up under Section 92 of the Indian Trusts Act, to resist the suit claim. The only case seen set up is that there was an agreement to re-convey the property on payment of the consideration paid under Ext.B1, and that consideration had been later paid to Kumaran and also his son, one of the plaintiffs, in part payments. The only case seen set up is that there was an agreement to re-convey the property on payment of the consideration paid under Ext.B1, and that consideration had been later paid to Kumaran and also his son, one of the plaintiffs, in part payments. What is essentially borne out by such a defence is that there was only a ‘trust of a covenant’ and not a ‘contract to create a trust’, and such being the case, it is outside the scope of Section 92 of the Indian Trusts Act. When a trust of covenant has not been carried out, the case would fall only under Section 56 of the Indian Trusts Act, which provides that the beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of his interest. What is provided under Section 56 of the Indian Trusts Act to the beneficiary is only a right to specific execution of the agreement constituting the trust in his favour by calling upon the trustee to convey to him the property. At the most, the defence projected by the defendants, leave alone whether it has got any merit, would amount to only a trust of a covenant and it has to be enforced as against the trustee seeking the right of the beneficiary for specific execution, which, at no point of item after Ext.B1 had been pressed into service either by Kunhan or his successors in interest. The defence so raised to resist recovery of possession on the strength of title by the plaintiffs was totally unworthy of any merit and deserved only an out right rejection. The decision relied by the learned counsel rendered in Sankara Kurup’s case, referred to above by the Apex Court, has no relevance to the facts of the case. That was a case where the agent and power of attorney holder of the plaintiff purchased in court auction the suit property with the funds of his principal, the plaintiff, and fraudulently got his name inserted in the sale certificate. In that context, it was held in that case that Section 4 of the ‘Act’ would not stand in the way of the plaintiffs’ suit for recovery of possession of their title and possession of the suit property. 7. In that context, it was held in that case that Section 4 of the ‘Act’ would not stand in the way of the plaintiffs’ suit for recovery of possession of their title and possession of the suit property. 7. In the present case, the defendants, who had set up conflicting and contradictory defences that Ext.B1 was a benami transaction, and the title of the plaintiffs over the suit property had been lost by their adverse possession, but with no case that Ext.B1 deed constituted any fiduciary character and a relationship of trustee and beneficiary as between the predecessors of the plaintiffs and that of the defendants, evidently tried to shape out a new defence raised over the benami transaction as one constituting under Section 92 of the Indian Trusts Act, to resist the suit claim in view of the commencement and operation of the Benami Transactions (Prohibition) Act, after the institution of the suit. That defence was rightly and correctly turned down by the courts below though on different reasonings. No question of law leave alone any substantial question of law is involved in the appeal. Appeal is devoid of any merit, and it is dismissed directing both sides to suffer their respective costs.