A.S.NO. 5 OF 1996

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 **AS.No. 5 of 1996** OS.326/1987 of I ADDL.SUB COURT, KOZHIKODE ## **APPELLANT: PLAINTIFF** : O.S.DHANDAYUDHAN, AGED 54 YEARS, S/O.O.N.SUBRAMANIAN CHETTIAR, KASABA AMSOM AND KARIAKUNNU DESOM, KOZHIKODE TALUK. - BY SENIOR ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.T.SETHUMADHAVAN - SMT.PRABHA R.MENON - SRI.PUSHPARAJAN KODOTH - SRI.M.KRISHNAKUMAR - SRI.LIGEY EMMANUAL ## **RESPONDENTS: DEFENDANTS** : 1. O.S.NARASIMHAN, S/O.O.N.SUBRAMANIAN CHETTIAR, KASABA AMSOM DESOM, KOZHIKODE TALUK. 2. KRISHNAVENI AMMAL, W/O.O.V.SUNDARAN CHETTIAR RESIDING AT BUILDING NO.192, IST AGRAHARAM, SELAM-1, TAMIL NADU. (DIED- LRS. RECORDED) 3. O.S.BALAKRISHNAN, S/O.O.V.SUNDARAN CHETTIAR, RESIDING AT BUILDING NO.192, IST AGRAHARAM, SELAM -1, TAMIL NADU. 4. O.S.DEVENDRAN, S/O. -DO-, RESIDING AT BUILDING NO.192, IST AGRAHARAM, SELAM-1, TAMIL NADU. 5. O.S.BALASUBRAMANIAN, S/O. -DO-, RESIDING AT BUILDING NO.192, IST AGRAHARAM, SELAM-1, TAMIL NADU. 6. O.V.GOVINDARAJALU CHETTIAR, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK. (DIED-LRS. IMPLEADED). - ADDL.R7. VASAVAAMBAL , AGED ABOUT 65 YEARS, (WIFE) VASAVI ILLOM, PONNAMALI PARAMBU, NEAR BABY MEMORIAL HOSPITAL, KOTTOLI, CALICUT - 16. 8. VISALAKSHI, D/O.LATE O.V.GOVINDARAJALU CHETTIAR, 49 YEARS, W/O.MADHAVAN, MURTHY BOOK SHOP, 188 BAZAR STREET, POOLACHI - 642 001, TAMIL NADU. 9. CHANDRASEKHARAN, S/O.LATE O.V.GOVINDARAJALU CHETTIAR, AGED 49 YEARS, DHANALAKSHMI BANK MANAGER, VARKALA, NEAR TRIVANDRUM. 10. USHADEVI, D/O. -DO-, AGED 45 YEARS, W/O.DR.JAYAPRAKASH, M.B.B.S., H.NO.1191, 27TH MAIN ROAD, IST PHASE, J.P.NAGAR, BANGALORE. THE ADDITIONAL RESPONDENTS 7 TO 10 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 6TH RESPONDENT VIDE ORDER DATED 17.5.2004 ON C.M.P.NO.4741/1999. RESPONDENTS 3 TO 5 ARE RECORDED AS LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT VIDE ORDER DATED 17.5.2004 IN MEMO CF.10952/1999. R6 BY SENIOR ADV. SRI.M.C.SEN SRI.C.K.KARUNAKARAN FOR R7 TO 10 SRI.C.E.UNNIKRISHNAN FOR R7 TO 10. SRI.M.P.HARIKUMAR FOR R7 TO 10. SRI.G.UNNIKRISHNAN FOR ADDL.R7 TO 10 SRI.G.P.SHINOD FOR ADDL.R7 TO 10 SRI.C.P.CHANDRASEKHARAN (CALICUT) FOR R3 & R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN, J.** **------------------------------------------------** ## **A.S. NO. 5 OF 1996** **-------------------------------------------------** **Dated this the 22[nd] day of March,2011** ## **JUDGMENT** The appellant filed O.S.No.326 of 1987, on the file of Court of the Subordinate Judge, Kozhikode, against the respondents for partition of the plaint schedule property having an extent of 2.61 acres of land and the buildings and improvements thereon, situated in Kottooli Desom of Kozhikode Taluk. The plaintiff claimed onefourth share in the plaint schedule property. 2. For comprehending the facts of the case, it is necessary to mention the genealogy of the parties. A.S.NO.5 OF 1996 :: 2:: ## NARASIMHAN Gurumoorthy O.N.Venkitarama Subramanian Subhalakshmi Sathyabhama Chettiar (died) (died in 1974) (died) (died) (His wife Balakrishna Ammal died in 1924) Dandayudhan Narasimhan (Plaintiff) (D1) Sundaram Govindarajulu Padmavathy Arjunabai (died-1946) (D6) (died pending Appeal) LRs: LRs: Krishnaveni Amma, Vasava Ammal (Widow) (R7) (Widow)- D2 Visalakshi (R8) Balakrishnan- D3 Chandrasekharan (R9) Devendran - D4 Ushadevi (R10) Balasubramanian-D5 3. It is admitted by the parties that the property originally belonged to Thekkedath Devaki Amma in jenm. She was also in possession of the property. According to the plaintiff, O.N.Venketarama Chettiyar, the husband of Balakrishna Ammal, purchased the property from Devaki Amma in the name of Balakrishna Ammal, benami for O.N.Venketarama Chettiyar, as per Ext.A100 registered sale deed dated 12.10.1920. According to A.S.NO.5 OF 1996 :: 3:: defendant No.6, the property was purchased by Balakrishna Ammal with the funds of K.Venketarama Chettiar, the father of Balakrishna Ammal and the transaction was not a benami transaction, as alleged by the plaintiff. The trial court dismissed the suit. 4. According to the plaintiff, O.N.Venketarama Chettiyar died in 1961 and according to the 6[th] defendant, he died in 1971. O.N.Venketarama Chettiyar had two brothers and two sisters. They were: Gurumoorthi, Subramanian, Subhalakshmi and Sathyabhama. Gurumoorthi passed away. Subramanian died in 1974. Subramanian is survived by his children Dhandayudhan (plaintiff) and Narasimhan (the first defendant). O.N.Venketarama Chettiyar was survived by his four children, namely, Sundaram (predecessor-in-interest of defendants 2 to 5), Govindarajalu (defendant No.6), Padmavathi Ammal and Arjunabai Ammal. Govindarajalu died pending appeal and his children were impleaded as additional respondents. 5. The case of the plaintiff is the following: From Thekkedath Devaki Amma, O.N.Venketarama Chettiyar purchased the property in the name of his wife Balakrishna Ammal, benami for him, as per A.S.NO.5 OF 1996 :: 4:: Ext.A100 registered sale deed. O.N.Venketarama Chettiyar was doing business in groceries and provisions in Calicut. Because of his involvement in business and attendant risks, he thought it prudent to purchase the property in the name of his wife. Balakrishna Ammal had no means of her own and she was completely depending on her husband. O.N.Venketarama Chettiyar was a person having sufficient funds. After the purchase, O.N.Venketarama Chettiyar was in possession and enjoyment of the plaint schedule property and he was paying the land revenue and other taxes. He used to take income and collect rent from the tenants. O.N.Venketarama Chettiyar also effected improvements in the plaint schedule property by planting kuzhikoors and constructing buildings. Govindarajalu (defendant No.6) was not in good terms with O.N.Venketarama Chettiyar. The sixth defendant made the life of O.N.Venketarama Chettiyar miserable. O.N.Venketarama Chettiyar had to depend on Krishnaveni Ammal, the widow of Sundaram. O.N.Venketarama Chettiyar had great regard for defendants 2 to 5, who were financially poor. On 17.2.1958, O.N.Venketarama Chettiyar settled one-half rights in the property in favour of his brother Subramanian and the remaining one-half right in favour of defendants 2 to 5, as per Ext.A1 settlement deed. The A.S.NO.5 OF 1996 :: 5:: donees were given possession of the plaint schedule property. Subramanian died in 1974 and his one-half right in the plaint schedule property devolved on the plaintiff and the first defendant in equal shares. The plaintiff and defendants 1 to 5 are in joint possession and enjoyment of the plaint schedule property. The plaintiff used to pay the land revenue and used to take income from the property and collect rent from the tenants till 1980. Thereafter, defendants 2 to 5 are taking income from the property and collecting rent from the tenants. There are eleven houses in the plaint schedule property, of which, ten are occupied by tenants. The remaining one house was occupied by the second defendant for some time. When she left Calicut, she entrusted the house to the sixth defendant. The plaintiff alleged that defendant Nos.2 and 6 colluded together to defeat the rights of the plaintiff and other coowners. The plaintiff claimed one-fourth share. He contended that the first defendant is entitled to the one-fourth share and defendants 2 to 5 are entitled to the remaining 2/4 share in the property. ## 6. The first defendant filed a written statement and contended that he is entitled to 1/4 share. He supported the plaintiff. Defendants 2 to 5 did not file any written statement. A.S.NO.5 OF 1996 :: 6:: 7. In the written statement filed by the sixth defendant, he contended that the plaint schedule property belonged to Balakrishna Ammal. The case of purchase of the property by O.N.Venketarama Chettiyar, benami for Balakrishna Ammal, was denied in the written statement. In the written statement, it was contended that the property was purchased with the funds of K.Venkitarama Chettiar, the father of Balakrishna Ammal. Balakrishna Ammal died in 1924. The property was dealt with by her husband thereafter as her children were minors. As per the customary law of the parties, the property of Balakrishna Ammal devolved on her two daughters, namely, Padmavathi Ammal and Arjunabai Ammal only. O.N.Venketarama Chettiyar had no rights in the property at any time. He did not exercise any independent act of possession. The alleged settlement deed in favour of defendants 2 to 5 and O.N.Subramanian do not confer any rights on them. Taking of income by the plaintiff and defendants 2 to 5 was denied by the sixth defendant. All the eleven houses in the property have been let out to tenants. The second defendant had not occupied any of the houses. She did not entrust the house to the sixth defendant. The plaintiff and defendants 2 to 5 are not entitled to any share in the property. It was ## A.S.NO.5 OF 1996 :: 7:: also contended that as per the power of attorney granted by Padmavathi Ammal and Arjunabai Ammal (Ext.B1), the sixth defendant was in possession of the property from 1958 onwards. He took income from the property and inducted tenants. He effected improvements in the property. In the year 1963, Padmavathi Ammal and Arjunabai Ammal leased the property to the sixth defendant. Even if the plaintiff and defendants 1 to 5 had any rights, the same has been lost by adverse possession. The sixth defendant also contended that the suit is not maintainable in view of “the Central Act abolishing the claim of real owners against Benamidars”. 8. Before the trial court, the plaintiff was examined as PW1 and Exts.A1 to A100 were marked on his side. The sixth defendant was examined as DW1 and Exts.B1 to B51 were marked on his side. 9. As stated earlier, the trial court dismissed the suit. The appeal was heard in great detail. Both sides produced a number of additional documents as per I.A.Nos.3097 of 2005, 3805 of 2005, 3921 of 2006 and 4511 of 2006. The plaintiff/appellant opposed the reception of additional documents produced by the sixth defendant. Similarly, the sixth defendant opposed acceptance of the additional A.S.NO.5 OF 1996 :: 8:: documents produced by the plaintiff/appellant. Sri.M.C.Sen, learned senior counsel appearing for the sixth defendant also raised a contention that some of the additional documents produced by the plaintiff are concocted documents and there are manipulations and erasures in some of the documents. 10. Both sides submitted that the property is situated within Kozhikode City limits and the property is worth several crores. During the course of arguments, it was also admitted by the counsel appearing for the parties that there are several errors and erroneous statement of facts in the judgment of the court below. It is also submitted by the counsel on either side that the findings of the trial court on issue No.1 that the suit is hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988 is not correct in view of the subsequent decisions of the Supreme Court in **R.Rajagopal Reddy (Dead) by LRs. and others** v. **Padmini Chandrasekharan (Dead) by Lrs.** ((1995) 2 SCC 630) and **Samithri Devi** v. **Sampuram Singh** (2011 (1) KLT SN 57 case No.75(SC)). 11. The trial court also held in paragraph 11 of the judgment that the plaint schedule property was not acquired by A.S.NO.5 OF 1996 :: 9:: O.N.Venketarama Chettiyar in the name of his wife as benami for him. The only discussion on that point is contained in paragraph 11 of the judgment. The contentions of the parties, the pleadings on the point and evidence on record were not dealt with at all by the court below while dealing with this point. 12. Issue Nos.2 to 6 were considered together by the trial court. It was held by the trial court that the property was acquired by Balakrishna Ammal with the funds of her father. This finding was arrived at only on the ground that no evidence was available to prove otherwise. Then the trial court held that as per the custom of inheritance prevailing in the community at the time of death of Balakrishna Ammal, her daughters would get rights over the property. There is no discussion about the custom and there is no discussion on the question of acquisition of the property. It is true that the counsel on either party submitted before this Court that if the property was Stridhana property of Balakrishna Ammal, it would devolve on her two daughters, Padmavathi Ammal and Arjunabai Ammal. But the trial court arrived at the finding on no materials. 13. Paragraph 15 of the judgment starts with the sentence as A.S.NO.5 OF 1996 :: 10:: follows: “Of course the plaintiff has also produced Exts.A1 to A100 to prove his case.” The conclusion of that paragraph running to 15 lines is the following. “So all the above referred documents will only show that the 6[th] defendant dealt the property firstly on the basis of the power of attorney deed executed by his sisters and then by the lease deed executed by them.” The documents referred to are Exts.A1 to A100. It is not stated how those documents would prove the case of the defendants. There is no discussion about the nature and probative value of those documents and the impact of those documents on the respective contentions of the parties. 14. A building in the plaint schedule property was in possession of a tenant, namely, Krishnan Nambissan. O.N.Subramanian Chettiyar, father of the plaintiff filed a Rent Control Petition against the tenant for eviction in the year 1958. Ext.B51 judgment in C.M.A.No.108 of 1959, Principal Sub Court, Kozhikode, arising out of that petition shows that the appeal was dismissed finding that there was bona fide dispute regarding title of O.N.Subramanian Chettiyar. The court below held that Ext.B51 judgment would operate as res judicata against the plaintiff in the present suit. This finding is clearly wrong. In the Rent Control A.S.NO.5 OF 1996 :: 11:: Petition, the tenant had disputed the title of O.N.Subramanian Chettiyar on the basis of the gift deed executed by O.N.Venketarama Chettiyar in his favour. According to the tenant, the property belonged to Balakrishna Ammal of her own and after her death, it devolved on her daughters. The Rent Control Court found that denial of title was bona fide and relegated the parties to a civil suit. O.N.Subramanian Chettiyar filed C.M.A.No.108 of 1959 challenging that order. That appeal was dismissed confirming the order of the Rent Control Court. In Ext.B51 judgment, it was held that O.N.Subramanian Chettiyar had to prove, in a properly constituted suit, that O.N.Venketarama Chettiyar was the owner of the property. Ext.B51 judgment cannot operate as res judicata at all against the plaintiff in the present suit. 15. In paragraph 18 of the judgment, the court below held that even though Exts.A1 to A100 have been produced by the plaintiff, the said documents will not prove that he got title or right over the property. There is no proper discussion at all in respect of the various documents produced by the plaintiff. In paragraph 19 of the judgment, the court below held that as regards Ext.A1 settlement deed executed by O.N.Venketarama Chettiyar in favour of his A.S.NO.5 OF 1996 :: 12:: brother Subramanian and defendants 2 to 5, there is a specific denial of execution of the document, by the sixth defendant. This finding is clearly wrong. There is no case for the sixth defendant that Ext.A1 was not executed by O.N.Venketarama Chettiyar. 16. After holding that the sixth defendant was in possession of the property from 1963 onwards on the basis of the lease deed executed by Padmavathi Ammal and Arjunabai Ammal, the court below held that the materials on record would establish that the plaintiff was ousted from the plaint schedule property and the sixth defendant has perfected title by ouster, adverse possession and limitation. In paragraph 19 of the judgment, the court below arrived at the aforesaid two contradictory and irreconcilable findings. After holding that the sixth defendant was claiming under a title and having accepted his possession on the basis of those documents, the court below was not justified in arriving at the conclusion that the sixth defendant had perfected title by ouster, adverse possession and limitation. The acceptance of the plea of ouster and adverse possession presupposes the rights of the plaintiff and defendants 1 to 5. Only if they and the sixth defendant are co-owners, the sixth defendant could contend that he had perfected title by ouster and A.S.NO.5 OF 1996 :: 13:: adverse possession. The sixth defendant had no such case. He always reiterated his title to the property. Therefore, the finding of the court below in paragraph 19 of the judgment is incorrect. 17. The other submissions made by Sri.T.Sethumadhavan, learned counsel appearing for the appellant, and that of Sri.M.C.Sen, the learned senior counsel appearing for the sixth defendant (sixth respondent in the appeal) are summarized below: **Submissions made by the appellant** : In paragraph 3 of the plaint, the case of benami was specifically set up. In view of the judgment of the Supreme Court in **R.Rajagopal Reddy (Dead) by LRs. and others** v. **Padmini Chandrasekharan (dead) by LRs.** ((1995) 2 SCC 630) and **Samithri Devi** v. **Sampuram Singh (** 2011 (1) KLT SN 57 case No.75), the Benami Transactions (Prohibition) Act does not apply to the present case. The said Act has no retrospective operation. The suit was filed in December, 1987, much before the commencement of the Act. On 26.11.1957, O.N.Venketarama Chettiyar settled the property in favour of defendants 3 to 6 with life estate to the second defendant, Krishnaveni Ammal. Subsequently, O.N.Venketarama Chettiyar cancelled the settlement deed and executed Ext.A1 settlement deed A.S.NO.5 OF 1996 :: 14:: dated 21.2.1958 in favour of his brother Subramanian and defendants 3 to 5, the legal representatives of Sundaram, son of O.N.Venketarama Chettiyar. There is no case that Balakrishna Ammal was having funds of her own. There is no acceptable evidence to show that K.Venkitarama Chettiar, the father of Balakrishna Ammal, provided funds for the purchase of the property. The court below has not properly considered the case of benami set up by the plaintiff. The documentary and oral evidence were not properly considered. The only finding on the question of benami is contained in paragraph 11 of the judgment. Even a proper issue was not raised by the trial court on the question of benami. Issue No.2 raised in the suit was “Is the suit property is self acquisition of Balakrishna Ammal as contended by D6”. The trial court has to raise a proper issue and to decide the same. The alleged resources of K.Venkitarama Chettiar, the father of Balakrishna Ammal, are not in evidence. DW1 did not say anything about it. The original of Ext.A100 was produced by the plaintiff/appellant as additional evidence as per I.A.No.3921 of 2006 and it is stated that the document was in the custody of the second defendant who handed over the same to the plaintiff. Custody of Ext.A100 is a relevant factor in deciding the question of benami. In the settlement deed A.S.NO.5 OF 1996 :: 15:: dated 26.11.1957 executed by O.N.Venketarama Chettiyar, there is a recital that Ext.A100 was handed over to the second defendant. In Ext.A1 settlement deed executed by O.N.Venketarama Chettiyar in the year 1958, it is stated that the acquisition was benami for him in the name of his wife. The consideration shown in Ext.A100 is `2,500/- and the value shown in Ext.A1 is `10,000/-. Evidence of DW1 shows that up to 1958, O.N.Venketarama Chettiyar was in possession and the sisters of the sixth defendant or the sixth defendant were not in possession. It is submitted that the enjoyment of the property by O.N.Venketarama Chettiyar is proved by Exts.A2 to A21 and A23 to A69. The evidence in the case would indicate that O.N.Venketarama Chettiyar was a flourishing businessman and that he constructed the buildings in the property. There is no specific denial of the averments in paragraph 3 of the plaint. It is admitted by DW1 that O.N.Venketarama Chettiyar was a businessman. His financial capability is also evident from the evidence of DW1. The declaration made by O.N.Venketarama Chettiyar in Ext.A1 gift deed and in the gift deed executed in the year 1957 that the acquisition was benami for him, has great evidentiary value. The admissions made by DW1 that his mother Balakrishna Ammal never possessed the property, that she never entrusted the buildings to tenants and A.S.NO.5 OF 1996 :: 16:: that she never took income from the property are very relevant in considering the contentions of benami. It is pointed out that DW1 clearly admitted in evidence that O.N.Venketarama Chettiyar possessed the property as the property belonged to him. The evidence would indicate that O.N.Venketarama Chettiyar never intended to confer any right or benefit on his wife Balakrishna Ammal in respect of the property. Sri.T.Sethumadhavan also relied on the following decisions in support of his contentions: AIR 1925 PC 181, AIR 1949 FC 88, **Union of India** v. **Moksh Builders and Financiers Ltd. & others** (AIR 1977 SC 409), **Sree Meenakshi Mills Ltd., Madurai** v. **Commissioner of Income-tax, Madras** (AIR 1957 SC 49), **Jaydayal Poddar through LRs. and another** v. **Mst.Bibi Hazra and others** (AIR 1974 SC 171), **Krishnanand Agnihotri** v. **State of M.P.** (AIR 1977 SC 796), **Kanakarathanammal** v. **V.S.Loganatha Mudaliar and another** (AIR 1965 SC 271), **Bhim Singh (dead) by LRs. and another** v. **Kan Singh** (AIR 1980 SC 727), **The Controller of Estate Duty, Lucknow** v. **Aloke Mitra** (AIR 1981 SC 102), **Sahdeo Karan Singh and others** v. **Usman Ali Khan and others** (AIR 1939 PATNA 462), **Rebti Devi (Smt)** v. **Ram Dutt and another** ((1997) 11 SCC 714), **Valliammal (Died)** A.S.NO.5 OF 1996 :: 17:: **LRs.** v. **Subramaniam and others** (2004) 7 SCC 233), **G.Mahalingappa** v. **G.M.Savitha** (2005) 6 SCC 441, **Binapami Paul** v. **Pratima Ghosh and others** ((2007) 6 SCC 100) and AIR 1986 Calcutta 83. 18. It is submitted that the case of the sixth defendant that on the death of Balakrishna Ammal, the property devolved on her daughters is not correct. It is not proved that the property was the Stridhana property of Balakrishna Ammal. There is no acceptable evidence to show that the property was purchased with the funds of K.Venkitarama Chettiar, the father of Balakrishna Ammal. There is no case for any of the parties that Balakrishna Ammal had her own funds and that she acquired the property out of her skill or earning. The court below seems to have assumed that the property was the Stridhana property of Balakrishna Ammal. There is no pleading or proof in respect of the same. 19. It is submitted by the learned counsel for the appellant that the case of the sixth defendant that Padmavathi Ammal and Arjunabai Ammal, the sisters of the sixth defendant, executed a power of attorney in favour of the sixth defendant is not correct. It is A.S.NO.5 OF 1996 :: 18:: not proved that such a power of attorney was executed by Padmavathi Ammal and Arjunabai Ammal in favour of the sixth defendant. Arjunabai Ammal filed O.S.No.45 of 1976 against the sixth defendant to set aside Ext.B1 power of attorney and Ext.B3 kanam deed allegedly executed by Padmavathi Ammal and Arjunabai Ammal in favour of the sixth defendant. It is stated in the plaint in O.S.No.45 of 1976 that the property was acquired by O.N.Venketarama Chettiyar as benami in the name of his wife. It is also submitted that the additional documents produced by the appellant would show that the Land Tribunal dismissed the application filed by the sixth defendant, but the appeal filed by him was allowed. That order was challenged by Arjunabai Ammal in C.R.P.No.143 of 1981. C.R.P.No.143 of 1981 was allowed and the matter was remanded to the Appellate Authority. At that time, it would appear that a settlement was arrived at by Padmavathi Ammal and Arjunabai Ammal on the one hand and the sixth defendant on the other and a family arrangement was executed among them. It is submitted that the various proceedings would indicate that the case put forward by the sixth defendant is not true and that he was bent upon getting the property for himself even though he raised a contention that his sisters had absolute right over the property. The A.S.NO.5 OF 1996 :: 19:: learned counsel for the appellant also submitted that in 1957 the property was gifted by O.N.Venketarama Chettiyar in favour of defendants 2 to 5 and the sixth defendant, under which the sixth defendant had one-half right in the property. That gift deed was cancelled by O.N.Venketarama Chettiyar and thereafter he executed Ext.A1 dated 21.2.1958. The counsel pointed out that in the 1957 and 1958 settlement deeds O.N.Venketarama Chettiyar asserted that the property was acquired by him in the name of his wife, benami for him. It is stated in the 1957 settlement deed executed by O.N.Venketarama Chettiyar thus: “ I have become old and infirm. My health is deteriorating. I am afraid, I may not live long. My younger son Govindarajalu and his family are not treating the family members of my pre-deceased son kindly. Hence I suspect that the quarrels and misunderstandings between these two families may grow worse and result in undesirable consequences to the detriment of the good name of the whole family.” The counsel also pointed out that even in Ext.A1 dated 21.2.1958, O.N.Venketarama Chettiyar asserted that the property belonged to him though it was acquired in the name of his wife. Ext.A1 also shows that Subramanian Chettiar was looking after the affairs of O.N.Venketarama Chettiyar though Subramanian Chettiyar was not having much of income. Ext.A1 also A.S.NO.5 OF 1996 :: 20:: shows that the sixth defendant neglected O.N.Venketarama Chettiyar at his old age which prompted him to execute Ext.A1 in favour of Subramanian and the legal representatives of deceased brother Sundaram. The counsel also pointed out that Ext.A1 was executed on 21.2.1958, while the sixth defendant had set up a power of attorney dated 12.3.1958 allegedly executed by Padmavathi Ammal and Arjunabai Ammal. Arjunabai Ammal had denied her signature in the power of attorney. The sixth defendant also claims that Padmavathi Ammal and Arjunabai Ammal leased the property as per Ext.B3 kanam deed in favour of the sixth defendant. Arjunabai Ammal disputed the same and she filed O.S.No.45 of 1976. The proceedings before the Appellate Authority (Land Reforms) and the suit were subsequently seen compromised and a family arrangement was executed among Padmavathi Ammal, Arjunabai Ammal and the sixth defendant. The counsel pointed out that the sixth defendant filed I.A.No.3951 of 1994 before the court below to issue a commission to examine his sisters, Padmavathi Ammal and Arjunabai Ammal, in the light of the contentions raised by the plaintiff that they did not put their signature in the document. The court below allowed I.A.No.3951 of 1994 and the sixth defendant was directed to deposit the commission batta of `3,000/-. He did not A.S.NO.5 OF 1996 :: 21:: remit the commission batta and therefore, Padmavathi Ammal and Arjunabai Ammal could not be examined. It is submitted that the evidence of Padmavathi Ammal and Arjunabai Ammal would have been relevant, but because of the adamant attitude of the sixth defendant, they could not be examined. 20. The learned counsel for the appellant also pointed out that Ext.B1 power of attorney was allegedly executed in 1958, while Ext.B3 kanam deed was executed in 1963. Ext.B3 refers to an oral entrustment in 1958. If there was an oral entrustment in 1958, it was not necessary to execute Ext.B1 power of attorney. If the oral entrustment was after Ext.B1, there was no reason why it was not cancelled. It is also pointed out that in Ext.B3, kanam is shown as `100/- and the purapad payable is shown as `100/- per year. There is no document to show that purapad was paid by the sixth defendant. It is also submitted that Ext.B3 is only a registration copy. The plaintiff denied the execution of Ext.B3. If so, the sixth defendant should have produced the original of Ext.B3. The original of Ext.B3 was produced and later the sixth defendant took back that document from Court. Likewise, Ext.B50 purchase certificate was also taken back. The plaintiff filed an application in the appeal to A.S.NO.5 OF 1996 :: 22:: direct the sixth defendant to produce those documents and in compliance with the order, the sixth defendant has produced the original of those documents. It is submitted that the trial court did not have an opportunity to examine the genuineness or otherwise of Exts.B1 and B3. 21. According to the appellant, the property in question was purchased in 1950 for a consideration of `2,500/-. At the time when Ext.A1 settlement was executed, the value of the property was shown as `10,000/-. However, in Ext.B3 kanam deed of the year 1963, the purapad fixed is only `100/- per year. It is submitted that this itself shows that the document is not genuine. It is pointed out that in the settlement deed dated 26.11.1957 the sixth defendant is also a beneficiary. Later, O.N.Venketarama Chettiyar thought that it was not safe to confer the rights on the sixth defendant and that was why the settlement deed was cancelled and Ext.A1 was executed. The sixth defendant is not claiming any right under the settlement deed dated 26.11.1957. The evidence of DW1 shows that he was aware of the settlement deed dated 26.11.1957. The case of the sixth defendant is that O.N.Venketarama Chettiyar was not competent to execute the settlement deed. It is submitted that it is A.S.NO.5 OF 1996 :: 23:: very strange that the sixth defendant did not claim any right under the settlement deed of the year 1957 when he did not have any right at that time and when he claims that he acquired rights only in 1963 as per Ext.B3 kanam deed. In 1958 also the sixth defendant had no right as such in the property and he only claimed possession on the basis of Ext.B1 power of attorney allegedly executed by Padmavathi Ammal and Arjunabai Ammal. 22. Learned counsel for the appellant also pointed out that the evidence of DW1 would clearly indicate that till 1958 O.N.Venketarama Chettiyar was in possession of the property and his daughters, namely, Padmavathi Ammal and Arjunabai Ammal were never in possession. It was also submitted that the court below did not properly consider the evidence of PW1 and DW1. 23. As per I.A.No.3921 of 2006, the original of Ext.A100 was produced by the appellant. The additional documents produced as per I.A.No.3921 of 2006 include a document to show that patta stood in the name of O.N.Venketarama Chettiyar in the year 1932 and that the revenue was paid by him. (Learned senior counsel appearing for the sixth defendant pointed out that document Nos.6 to 16 produced A.S.NO.5 OF 1996 **==> picture [30 x 9] intentionally omitted <==** along with I.A.No.3921 of 2006 are manipulated documents and there are erasures in those documents. It is pointed out that the initial 'K' is erased in those documents.) 24. With reference to the additional documents produced as per I.A.No.3097 of 2005, the learned counsel for the appellant submitted that Arjunabai Ammal disputed the genuineness of Ext.B3 kanam deed. In the plaint in O.S.No.45 of 1976, it was specifically stated by her that the property was acquired by O.N.Venketarama Chettiyar, benami for him in the name of his wife. She also stated in the plaint that after the death of the mother, the property devolved on her daughters. 25. It is submitted that there is no evidence to show that K.Venkitarama Chettiar had sufficient resources and that he provided funds for purchasing the property in the name of his daughter. It is pointed out that there is not even oral evidence to show the same. In the absence of any evidence regarding the source of consideration, the learned counsel submitted that the principles stated in AIR 1949 FC 88 will apply. A.S.NO.5 OF 1996 :: 25:: 26. It is submitted that O.N.Venketarama Chettiyar was receiving rent from the tenants. There is no document to show that any other person was receiving rent from the tenants in the buildings. It is submitted that Exts.A24 to A69 receipts issued by various tenants to O.N.Venketarama Chettiyar would clearly prove that he was dealing with the property as his own. 27. Learned counsel for the appellant also pointed out that some of the additional documents produced by the sixth defendant/sixth respondent as per I.A.No.4511 of 2006 would show that after the death of Balakrishna Ammal, patta stood in the name of her sons Sundaram and the sixth defendant. If so, how could the sixth defendant claim exclusive title to the property? It is pointed out that the proceedings of the Tahsildar were in 1959, by which, the land was registered in the name of Sundaram and Govindarajalu (sixth defendant). Even according to the sixth defendant, Ext.B1 power of attorney was executed in his favour in the year 1958. There is no document to show that the patta stood in the name of Padmavathi Ammal and Arjunabai Ammal. 28. The learned counsel for the appellant submitted that the A.S.NO.5 OF 1996 :: 26:: court below committed an error in holding that sixth defendant has perfected title by adverse possession. When the claim made by the sixth defendant was referable to a valid title, he is not entitled to claim adverse possession. The counsel relied on the decisions in **Annasahieb Bapusaheb Patil and others** v. **Balwant alias Balasaheb Babusaheb Patil (dead) by LRs. and heirs etc.** (AIR 1995 SC 895), **Abdul Rahman** v. **Prasony Bai and another** ((2003) 1 SCC 488) and **Deva (Dead) through LRs.** v. **Sajjan Kumar (Dead) by LRs.** ((2003) 7 SCC 481). ## 29. **Submissions made on behalf of the sixth respondent** **(sixth defendant** ): Sri.M.C.Sen, learned senior counsel appearing for the sixth respondent submitted the following: There is no evidence to show that the property was purchased by O.N.Venketarama Chettiyar with his own funds. The plaintiff has to prove that the intention of the purchase made by O.N.Venketarama Chettiyar was not to benefit Balakrishna Ammal, but to benefit O.N.Venketarama Chettiyar himself. He relied on the decisions in 1962 KLJ 1261, **Valliammal (Died) LRs.** v. **Subramaniam and others** ((2004) 7 SCC 233) and **Binapami Paul** v. **Pratima Ghosh** A.S.NO.5 OF 1996 :: 27:: **and others** (2007) 6 SCC 100) in this regard. The counsel submitted that the plaintiff has to prove the resources of and the contribution of funds by O.N.Venketarama Chettiyar. Even if the source is proved, that by itself is not sufficient to prove the case of benami. It has to be proved that the other ingredients also existed. 30. It is pointed out that PW1 is not a competent witness to speak about the nature of acquisition under Ext.A100. At the time of adducing evidence, PW1 was aged only 53 years. He was born 23 years after the date of Ext.A100. The evidence of PW1 is only hearsay evidence. There is no direct evidence as to the source of money for the acquisition of the property. There is also no evidence to show that O.N.Venketarama Chettiyar provided funds for the acquisition. Ext.A100 described Balakrishna Ammal not as the wife of O.N.Venketarama Chettiyar, but as the daughter of K.Venkitarama Chettiar. This probabilises that K.Venkitarama Chettiar, the father of Balakrishna Ammal, provided funds for the acquisition. Sri.M.C.Sen submitted that two contingencies can be imagined, namely, (1) where it is admitted or proved that O.N.Venketarama Chettiyar, the husband of Balakrishna Ammal, provided funds for the purchase of the property in the name of his A.S.NO.5 OF 1996 :: 28:: wife; and (2) where it is not so admitted or proved. It is submitted that the courts have taken the view that that is not enough to prove the benami nature of the transaction. It is to be further proved that the purchase was not intended to benefit the person in whose name the property was purchased. There is no indication in Ext.A100 that the funds were provided by O.N.Venketarama Chettiyar. There must be independent, acceptable and legal evidence to prove that O.N.Venketarama Chettiyar provided the funds and that he never intended that Balakrishna Ammal should be the beneficiary of the purchase. 31. It is submitted that the recital in Ext.A1 that the property was purchased by O.N.Venketarama Chettiyar benami for him in the name of his wife would not constitute legal evidence. It was only a unilateral and self serving statement. The sixth defendant is not bound and his rights are not affected by the aforesaid unilateral statement in Ext.A1. There is no evidence to show that Ext.A1 was accepted and acted upon. Though an attempt was made by Subramanian Chettiyar, acting on Ext.A1, to evict the tenant, he did not pursue the matter further when the denial of title made by the tenant was accepted as bona fide by the Rent Control Court. A.S.NO.5 OF 1996 :: 29:: Immediately after the purchase of the property as per Ext.A100, patta was transferred in the name of Balakrishna Ammal. After her death, patta was transferred in the name of her father K.Venkitarama Chettiar. Sri.M.C.Sen referred to the following decisions cited on behalf of the appellant and tried to distinguish those decisions on facts: **Valliammal (Died) LRs.** v. **Subramaniam and others** (2004) 7 SCC 233), AIR 1925 PC 181, AIR 1949 FC 88, **Jaydayal Poddar through LRs. and another** v. **Mst.Bibi Hazra and others** (AIR 1974 SC 171). 32. It is submitted that patta was transferred in favour of Balakrishna Ammal and this is evident even from the documents produced by the appellant as additional documents as per I.A.No.3921 of 2006. In document Nos.4 and 5 produced as per I.A.No.3921 of 2006, at the place where it is mentioned 'Jamakkari' something was erased. It is submitted that most probably the name of 'Jamakkari' would have been shown as Balakrishna Ammal. Balakrishna Ammal died in the year 1924 and in the subsequent documents, 'Jamakkaran' is shown as K.Venkitarama Chettiar, father of Balakrishna Ammal. It is submitted that an attempt was made by Subramanian Chettiyar, the brother of O.N.Venketarama Chettiyar, A.S.NO.5 OF 1996 :: 30:: to change the patta. The sixth respondent filed I.A.No.4511 of 2006 to accept additional documents. According to the counsel, these documents would show that Subramanian Chettiyar attempted to transfer the patta in his name. It is also submitted that from 1958 onwards, all the revenue receipts were issued in the name of the sixth defendant. After Subramanian Chettiyar failed in his attempt to change the patta, the suit was filed only in the year 1987 by his son. In 1960, as per Ext.B2, the patta was transferred in the name of Padmavathi Ammal and Arjunabai Ammal. The plaintiff has not made Padmavathi Ammal and Arjunabai Ammal as parties to the suit, they being necessary parties to the suit. The counsel relied on AIR 1965 SC 271 in this regard. The learned counsel for the sixth respondent submitted that though in paragraph 5 of the plaint it is averred that Subramanian Chettiyar was paying tax, no documents are produced to show the same. PW1 stated in evidence that there must be documents to prove possession of the plaintiff and defendants 2 to 5. But no such documents have been produced. 33. It is submitted that even if it is shown that O.N.Venketarama Chettiyar was managing the property, that by itself is not sufficient to prove the case of the plaintiff. Such management, A.S.NO.5 OF 1996 :: 31:: if any, by O.N.Venketarama Chettiyar was not inconsistent or incompatible with the rights of his then minor daughters, namely, Padmavathi Ammal and Arjunabai Ammal. Such possession, if any, would not destroy the rights of Padmavathi Ammal and Arjunabai Ammal. The counsel relied on AIR 1972 AP 233 and **Kanakarathanammal** v. **V.S.Loganatha Mudaliar and another** (AIR 1965 SC 271) in support of the contention that in Hindu families, even properties owned by families would be managed by the Manager of the family. 34. It is submitted that Exts.A2 to A21 building tax receipts were all for the period after Ext.A1. There is no receipt evidencing payment of building tax before 1958. It is submitted that Exts.A24 to A69 receipts issued by the tenants to O.N.Venketarama Chettiyar are not proved in accordance with law. It is submitted that even assuming that these documents are genuine, it only proves that O.N.Venketarama Chettiyar was in management. Such management would not be inconsistent with the title of Balakrishna Ammal or with the title of her daughters after her death. 35. Sri.M.C.Sen, cited the following decisions in support of his A.S.NO.5 OF 1996 :: 32:: contentions: **Jaydayal Poddar through LRs. and another** v. **Mst.Bibi Hazra and others (** AIR 1974 SC 171), **Valliammal (Died) LRs.** v. **Subramaniam and others** (2004) 7 SCC 233), **Rebti Devi (Smt)** v. **Ram Dutt and another** (1997) 11 SCC 714, **Binapami Paul** v. **Pratima Ghosh and others** ((2007) 6 SCC 100), 1962 KLJ 1261, AIR 1971 Madras 370, AIR 1932 PC 13, AIR 1992 Delhi 357. Some of these decisions were relied on by the learned counsel for the appellant as well. ## 36. Sri.M.C.Sen submitted that the trial court has considered the pleadings and evidence in the case as well as the contentions put forward by the parties and has arrived at a conclusion which is legally correct. Even if some mistakes occurred in the judgment, those mistakes by themselves are not sufficient to hold that the judgment of the court below is liable to be interfered with. 37. **Conclusion** : While dealing with the issues, the court below committed some grave errors which go to the very root of the case. The documentary and oral evidence were not property adverted to and considered by the court below. There was no proper A.S.NO.5 OF 1996 :: 33:: discussion of the case put forward by the parties and the evidence on record. The court below arrived at the conclusions practically on no materials and on the basis of incorrect approach to the various questions involved in the case. The finding of the court below that Ext.B1 would operate as res judicata against the contention of the plaintiff is patently wrong. The court below arrived at the finding that the Benami Transactions (Prohibition) Act is retrospective in operation and therefore, the case of benami cannot be put forward. Of course, that conclusion was arrived at on the basis of the decision of this Court in 1988(2) KLT 369. Later, the law has been laid down by the Supreme Court in **R.Rajagopal Reddy (Dead) by LRs. and others** v. **Padmini Chandrasekharan (Dead) by LRs.** ((1995) 2 SCC 630). It is true that the court below attempted to consider the case of benami on the merits. The only discussion on that point and the findings are contained in paragraph 11 of the judgment. There was no proper consideration of the case of benami at all. The main issue to be decided in the case is whether the purchase of property in the name of Balakrishna Ammal as per Ext.A100 was benami for O.N.Venketarama Chettiyar. The court below did not consider the said contention after adverting to the pleadings and documentary and oral evidence in the case and on the principles of law laid down A.S.NO.5 OF 1996 ## :: 34:: by the Supreme Court as well as the various High Courts. The court below was not justified at all in finding that the sixth defendant has perfected title by ouster and adverse possession. The sixth defendant was claiming rights over the property under a claim of title. Therefore, there could be no finding that he has perfected title by adverse possession and ouster. Ouster arises when a co-owner is ousted from the property and the other co-owner has perfected title by adverse possession. There is no case for the sixth defendant that the plaintiff and defendants 1 to 5 are co-owners. Therefore, there could be no ouster and adverse possession in favour of the sixth defendant. The contention put forward by the sixth defendant that he is the title holder and that he has perfected title by adverse possession and ouster are contrary to each other and the contentions are irreconcilable. 38. Moreover, both parties have produced several documents before the appellate court as additional documents. From the submissions made by the learned counsel appearing for the parties, it is seen that the parties very much like the Court to consider those documents as well. As regards some of the documents produced by the appellant, serious objections have been raised that those A.S.NO.5 OF 1996 :: 35:: documents are manipulated and there are interpolations and interlineations in those documents. Without adducing evidence and proving the documents in accordance with law, I do not think it would be proper to accept the additional documents produced by either side at the appellate stage. The impact of non-examination of Padmavathi Ammal and Arjunabai Ammal was also not taken note of by the court below. 39. In the facts and circumstances of the case, I think it would be ideal for both parties if the case is remanded to the trial court for fresh disposal, after affording an opportunity to both parties to produce documents and to adduce evidence. As stated earlier, the property is very valuable and it is worth several crores. In the interest of justice also, I am of the view that it would be expedient to remand the case to the trial court. 40. For the aforesaid reasons, the judgment and decree passed by the trial court are set aside and the case is remanded to the trial court for fresh disposal. The trial court shall permit both parties to adduce evidence and to produce documents. The additional documents produced by the parties as per I.A.Nos.3805 of A.S.NO.5 OF 1996 :: 36:: 2005, 3097 of 2005, 3921 of 2006 and 4511 of 2006 shall be transmitted to the trial court. In this appeal, the question of acceptability of those additional documents is not considered. The trial court shall consider the same and if the documents are admissible, accept those documents in evidence. For the purpose of proving the additional documents produced as per the aforesaid four interlocutory applications, the parties would be free to examine such other witnesses as are required. It is also made clear that the parties would be free to adduce such other evidence to prove the other respective contentions as well. The trial court shall take note of the contentions put forward by both sides as mentioned in this judgment and the contentions put forward by them in the trial court during the course of argument. The trial court shall make every endeavour to dispose of the suit expeditiously. The parties shall appear before the trial court on 1.6.2011. **(K.T.SANKARAN) Judge** ahz/ ## **K.T.SANKARAN, J.** **-------------------------------------** **-------------------------------------** **A.S.NO. 5 OF 1996** ## **JUDGMENT** **22[nd] March, 2011 -------------------------------------**