Full Judgment Text
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PETITIONER:
PADMINI CHANDRASEKHARAN [SINCE DECEASED] THROUGH LRS.
Vs.
RESPONDENT:
R. RAJAGOPAL REDDY [SINCE DECEASED] THROUGH LRS.
DATE OF JUDGMENT: 19/02/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
1996 SCALE (2)766
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have learned counsel on both sides.
This appeal by special leave arises from the judgment
and decree dated August 16, 1995 of the Division Bench of
Madras High Court made in OSA No.27 of 1980.
The appellant, [since deceased] represented by the
executors of her will in C.S.110 of 1971, laid the suit for
declaration that she was the sole and exclusive owner and in
possession, in her own right, of the house and ground
bearing Door No.40, Fourth Main Road, Gandhi Nagar, Adyar,
Madras-20 as owner thereof and for permanent injunction
restraining R. Rajagopala Reddy, the first defendant in the
suit, or his agents or servants, from interfering with her
possession and enjoyment thereof. Initially, the suit was
decreed but on appeal, following the judgment of this Court
in Mithilesh Kumari & Anr. v. Prem Behari Khare [AIR 1989 SC
1247] holding that Section 4 of the Benami Transactions
[Prohibition] Act, 1988 operates retrospectively, the High
Court held that the second defendant, Venugopal Reddy was a
benamidar and the joint family had no manner of right
whatsoever over the suit property. The earlier partition
deed was not valid. On appeal to this Court, the view taken
in Mithilesh Kumari’s case was overruled by a three-Judge
Bench in this very case and the matter was remitted to the
High Court for a decision afresh. The Division Bench after
considering the evidence held that Venugopal Reddy was
allotted the plot by Madras Cooperative Housing Construction
Society [Housing Society]; at a partition in 1955, the suit
property was allotted to Srinivasalu Reddy, elder brother of
Rajagopal Reddy belonging to one branch Petta family;
Venugopal Reddy was benamidar for joint family. Accordingly,
the High Court allowed the appeal, set aside the decree of
the trial Judge and dismissed the suit. Thus this appeal by
special leave.
When the matter had come up before us for admission,
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the question raised by Shri Kapil Sibal, learned senior
counsel was that the Division Bench had not considered the
effect of the benami transaction in proper perspective and,
therefore, the decision is vitiated by grave error of law.
Accordingly, notice was taken by the respondents and they
have filed their counter and have placed on record the
entire evidence.
The only question is whether Venugopal Reddy, the
second defendant is a benamidar of the property belongs to
Rajagopal Reddy, the first defendant. It is not in dispute
that on an application made by Venugopal Reddy, the second
defendant on July 9, 1947 to the Housing Society the site
was allotted in his name. Three families were living as
composite Hindu Joint Family who dealt with extensive
properties situated in various places including Thada,
Venadu etc. in Andhra Pradesh and in the City of Madras.
Three families are for short stated as Petta, Vakatti and
Eswaravakka families. Rajagopal Reddy equally applied for
allotment to the Housing Society. Venugopal Reddy had
allotment of the suit property. At a partition that took
place between three families on September 29, 1955 under
partition deed [Exh.D-9], several properties including the
suit land fell to the share of Petta family represented by
Srinivasalu Reddy and Rajagopal Reddy, the first defendant.
After the partition, the appellant paid rents to Srinivasalu
Reddy from 1956 to 1957. Srinivasalu Reddy also paid hire-
purchase instalments to the Housing Society. Pursuant to the
letter dated November 7, 1958, Venugopal Reddy directed the
appellant to pay the balance amount and also rents to
Srinivasalu Reddy and accordingly she paid the same. By
letter dated February 24, 1961, the husband of the appellant
enquired from Srinivasalu Reddy whether he was prepared to
transfer the said property in his name to which Srinivasalu
Reddy declined to execute the sale deed. Thereafter, the
litigation started.
From these facts, the question that emerges is: whether
Rajagopal Reddy is benamidar for Venugopal Reddy and whether
the appellant had the property from Venugopal Reddy? The
Division Bench has recorded a finding, in our view rightly,
that the 1955 partition [Exh.D-9] was not questioned by
Venugopal Reddy as vitiated by any fraud or
misrepresentation. Therefore, it was not open to the
appellant to question the same. Her plea that she discharge
the amount due and payable to the Housing Society on behalf
of the Venugopal Reddy pursuant to an agreement she had
entered into with Venugopal Reddy and thereby she became the
owner, has also been negatived by the Division Bench in our
view quite rightly. The only question, therefore, is whether
Venugopal Reddy is the real owner and Rajagopal Reddy in
purchasing the property from the Housing Society? The
Division Bench has recorded, as a fact, the finding based on
voluminous evidence that "[v]arious items of properties
purchased in the names of different individuals of the
family were put into the common pool and divided amongst the
members of the composite family. All the three families
alone had the right, title and interest in all the
properties. They have acted upon by adjusting their rights
mutually in terms of the deed by taking their respective
shares in the various properties. In our view, the
partition, which was acted upon by the parties to the same,
cannot be set aside on the contention of the learned counsel
for the 1st respondent that it was not a composite family".
The partition deed was not a sham or nominal document nor
was it vitiated by fraud or misrepresentation only in
respect of one item. There cannot be any ulterior motive or
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extraneous consideration for the parties to enter into such
a partition in the year 1955. The partition having remained
unquestioned for a long period of time by any of the parties
to the deed, it does not lie in the mouth of a third party
to impeach the nature of the transaction recorded in the
said document when Venugopal Reddy himself had not
questioned the partition deed (Ex.D-9).
From these facts, the question emerges whether
Rajagopal Reddy is only a benamidar for Venugopal Reddy? In
the face of the conduct of the appellant and her husband in
paying the rents to Srinivasalu Reddy, brother of Rajagopal
Reddy and her Husband asking Srinivasalu Reddy of his
willingness to transfer the property in his favour; on
payment of rent, the appellant-plaintiff amounts to have
attorned Srinivasalu Reddy as owner of the demised property
and, therefore, she was stopped under Section 116 of the
Evidence Act to deny title of Srinivasalu Reddy, brother of
Rajagopal Reddy, the first respondent. The decree of
eviction had by Rajagopal Reddy from the Rent Controller
binds the appellant-plaintiff which had become final, though
the question of title was left open. In those circumstances,
the plea of benami is only a collusive one between her and
Venugopal Reddy to defraud Srinivasalu Reddy and Rajagopal
Reddy of the property had in the partition. Though the High
Court has not dealt with this aspect of the matter in proper
perspective, from the above consideration we find that the
decree is not vitiated by any error of law.
The appeal is accordingly dismissed. No costs.