Rayankutty vs Athankutty and others

Balakrishna Ayyar, J.—One Rayankutty, the first defendant in an action for redemption of a mortgage is the petitioner before me. The

plaintiff is one Moosakutty. During the pendency of the action in the District Munsif Court of Manjeri, Athankutty filed a petition for being

impleaded as a party on the ground that Moosakutty, the plaintiff, was only a benamidar, that he, Athankutty, was the real owner of the property,

and that the plaintiff and the defendants were colluding together. The learned District Munaif allowed the petition and directed that Athankutty be

added as a party. He concluded his order with a direction that Athankutty should take steps to get Moosakutty, the original plaintiff, transposed as

a defendant. The first defendant, Rayankutty seeks to canvass the correctness of this order. Mr. Pocker the learned Advocate for the petitioner

put his case thus: I have no interest in the dispute between Moosakutty and Athankutty. Why should I be involved in a fight between them? If

Athankutty considers that he is entitled to the property, let him file a separate suit and work out his remedies against his benamidar.

One answer to this contention of Mr. Pocker is that by the time Athankutty can file a separate suit and move the Court for the relief he seeks the

mischief he apprehends would have been accomplished and he would be without a remedy. It is well established that in proceedings by or against

a benamidar, the person, beneficially entitled is fully affected by rules of res judicata; vide Gur Narain v. Sheelal Singh 46 Cal. 566 = 9 L.W. 335

(P.C), O. 1, R. 10, Civil Procedure Code, confers on the Court a considerable measure of discretion and it seems to me that the discretion should

not be so exercised as to facilitate the perpetration of a fraud. It is of interest to note that the plaintiff the alleged benamidar did not file a counter in

the Court below, Nor has he appeared to oppose this petition, which seems to imply that he is not in a position to controvert the allegation of

Athankutty that he is the real owner of the property.

In support of his arguments Mr. Pocker cited Narayanaswami Naidu v. Subbaramulu Naidu 68 M.L.J. 236 = 41 L L.W. 126 and Palanisami

Chettiar v. Komara Chettiar (1919) 2 M.L.J. 568 = 62 L.W. 722.. Neither of these decisions is directly in point. In the former case the person,

who wanted to come on record, depended on an agreement extraneous to the suit and contingent on its results. The agreement was that in the

event of the plaintiffs succeeding in the suit they should convey to him a hall share in certain properties and in the moneys that might be recovered.

The present case is entirely different. Athankutty wants to come on record on the ground that he is the real owner of the property and therefore the

real and proper plaintiff. The second case merely decided that in a suit for the specific performance of an agreement to sell against the executants

of the agreement, the sons of the persons who executed the agreement were not necessary parties and could not be added even though they might

plead that the agreement would not bind them.

The decision directly in point is Pitchayya v. Rattamma AIR 1929 Mad. 26 = 29 L.W. 56. Dealing with the arguments which were urged before

them-and they were the same that Mr. Pocker repeated before me-the learned Judge observed :

Mr. Krishnaswami Aiyar''s argument is that as the benamidar could sue in his own name, it is not open to the Court to make the real owner a party

to the action. The cases, Vaitheeswara Aiyar v. Srinivasa Raghava Iyengar 42 Mad. 348 = 9 L.W. 362 (F.B.) and Gur Narayan v. Sheo Lal

Singh 46 Cal. 566 = 9 L.W. 336 (P.C.) do not support his contention They only decided that a benamidar could bring a suit in his own name

without making the real owner a party. But a Court could make the real owner a party if it thinks that his presence is necessary for the proper

determination of the suit.

In Gur Narayan v. Sheo Lal Singh 46 Cal. 566 = 9 L.W. 336 (P.C.) their Lordships of the Privy Council observed as though the matter was

one too plain for argument that it is open to the real owner to apply to be joined in an action brought by the benamidar. I am of the opinion that the

decision of the lower Court is right; this petition is therefore dismissed with costs.