C.T. Mohanan vs C. Yesoda

K.G. Balakrishnan, J.—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, Chovva Desom. The plaintiff filed a suit alleging that the plaint schedule property belongs to her. There is a ''Samadhi Sthanam Nagarn'' on the eastern side of the plaint schedule property. The plaintiff claims title and possession of the entire 36 cents inclusive of this ''Samadhi Sthanam 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 Sthanam Nagam. In 1967, an R.C.C. building was put up on the property at the place of worship according to the wishes of the ''Gurunadhan''. Religious ceremonies are being performed in the ''samadhi''. The 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, the 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, the 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 that 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. 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 Yesoda. The said Yesoda transferred the property on 4-12-1961, in favour of Krishnan, the husband of defendant No. 2. 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 Sthanam Nagam'' in the plaint schedule property and after the death of Krishnan, the plaintiff and her children tried to trespass into the property.

After the filing of the suit, the plaintiff died and her children were impleaded as legal representatives 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. The defendants filed an appeal before the sub-court, Tellicherry, and the learned sub-Judge held that the plaintiff had been in possession of the property and the decree for permanent prohibitory injunction was confirmed. The defendants challenge the judgment and decree passed by the Courts below.

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 PW-1, the son of the original plaintiff, Madhavi, that the ''Samadhi Sthanam Nagam'' was constructed on the eastern side of the property. On the basis of the documents produced by the plaintiff, it was held that Krishnan, the husband of defendant No. 2, had no possession over the land. The 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.

Admittedly, the disputed plaint schedule property comprised in R. S. No. 69/6 of Chovva Desom was 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 exhibit A-11 dated 23-11-1961 to Yesoda, who is the additional respondent No. 2 in the appeal. Yesoda is the daughter of the plaintiff, Madhavi. Thereafter, Yesoda transferred this property to her brother, Krishnan, as per exhibit A-12 dated 4-12-1961. The assignee, Krishnan, is the husband of defendant No. 2, Janaki. On the date of exhibit A-12 document, the plaintiff, Madhavi, had purchased 36 cents of land under exhibit A-10 document from the wife and children of Ramunni. Exhibit A-10 property is on the northern side of exhibit A-12 property. The plaintiff''s case is that both exhibits A-10 and A-12 documents were executed at the instance of the plaintiff, Madhavi, and she paid the consideration for both these transactions. The plaintiff would further say that though exhibit A-11 documents was executed in the name of Yesoda, her daughter, consideration in fact, was paid by the plaintiff. That seems to 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 the plaintiff did not specifically allege that the plaintiff, Madhavi, purchased the property in the name of Yesoda and that exhibit A-12 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 exhibit A-12 sale deed, the property was in continuous enjoyment by the plaintiff along with her northern portion of the property as a single item. At the time of evidence, PW-1 specifically deposed that both exhibits A-11 and A-12 documents were executed by the plaintiff, Madhavi, and the plaintiff, Madhavi, paid consideration for exhibit A-11 document. PW-1 deposed that the property was never in the possession of Yesoda and exhibit A-12 document was executed in the name of Krishnan as he was the eldest member of the family. In the cross-examination, he stated:

[The passage in Malayalam is not printed here - Ed.]

[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 the 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.]

From the pleading and the evidence of the plaintiff, it is clear that the plaintiff has set up a case of benami and according to her exhibits A-11 and A-12 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 entitled to raise such a plea in view of section 4 of the Benami Transactions (Prohibition) Act, 1988, which came into force on 19-5-1988. The relevant portion of section 4 reads as follows:

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.

It may be noted that this Court in VELAYUDHAN RAMAKRISHNAN AND OTHERS Vs. RAJEEV AND OTHERS., considered the scope and effect of section 4 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 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..." (p. 483)

I am in respectful agreement with the above said decision and if the provisions of the Benami Transactions (Prohibition) Act, are applied to the facts in this case, the plaintiff''s plea must fail. The learned counsel for the plaintiff-respondents contended that the plaintiff has not alleged any benami, but, in fact, only alleged that exhibits A-11 and A-12 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 LIMITED Vs. COMMISSIONER OF Income Tax, MADRAS., . 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 as the 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 whereas 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..." (p. 52)

Based on the above decision, it was contended that the plaintiff had not set up any case of benami but that exhibits A-11 and A-12 documents are sham documents and have not come into existence. It was contended that Krishnan had not acquired any right over the property under exhibit A-12 since that transaction is a sham transaction and that 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.

The above contention cannot be accepted. The specific case of the plaintiff, Madhavi, is that she purchased the property in the name of Yesoda under exhibit A-11 document. Therefore, according to the plaintiff, she is the real owner and Yesoda is only a benamidar. The plaintiff''s further case is that though Yesoda executed exhibit A-12 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 ''benami transaction'' in section 2(a) of the said Act. Section 2(a) reads as follows:

Definitions.- In this Act, unless the context otherwise requires,-

(a) ''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 exhibit A-12 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 section 4. Therefore, the plea of the plaintiff that the property did not belong to Krishnan as per exhibit A-12 cannot be accepted.

The evidence in this case also would show that the plaintiff wanted to deny 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, constructed the ''Samadhi Sthanam Nagam'' on the eastern side of the property. Krishnan being the son, the plaintiff might have allowed Krishnan and others to construct the ''Samadhi Sthanam 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 some time residing in the house of the plaintiff. The plaintiff was residing on the northern side of the property. The Commissioner''s report also shows that there was some boundary in between the plaint schedule property and the northern property held by the plaintiff. The Courts below were swayed by the plaintiff''s documents. They would only show that the plaintiff and P.W.-1 spent some amount and actively participated in constructing the ''Samadhi Sthanam 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 the 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.