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1991 Supreme(AP) 70
Andhra Pradesh High Court
Judges : J.ESWARA PRASAD, M.JAGANADHA RAO
Lakkstkula Venkateshwarlu - Appellant
Versus
Sardar Ajab Singh - Respondent
L.PA. No. 199/89
Decided On : 02-25-91
Advocates Appeared :
Mr. B.V. Subbaiah,Mr. R. Venkateswarlu,Mr. P. Ramachandra Reddy
Headnote:BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 - Secs 3 (2) & 4 - Purchases of two different extents of land made by a parson under 2 registered sale deeds on a in favour of his wife and an other in favour of his minor son - Agreement of sate of land executed by wife and minor son represented by his father - Suit for specific performance of agreement or refund of consideration on the plea of banami transaction by the father - Decree can be - granted so far aa the land standing in favour of wife and not in respect of land standing in favour of son who has become a major
Held : The prohibition contained in Sub-Sec (1) of Sec 3, shall not apply to purchases of properties by any person in the name Of his wife or his unmarried daughter and it shall be presumed unless contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter It is therefore clear that so far as the first defendant [wife] is concerned, the third defendant [husband] could not have filed a suit against her; for the said property cannot be said to be benami in view of SubSec (2) of Sec 3 The first defendant wife could not however object to the recovery of the said property by the third defendant husband treating the same to be held benami
The plaintiff, who claims to have purchased from the third defendant suffers from the same disability on the third defendant and cannot seek to get over the prohibition in Sec 4 Therefore while the plaintiff is not precluded from claiming specific performance against the first defendant on the ground that the property is benami in the name of the first defendant, the same does not apply to property standing in the name of the 2nd defendant son
LPA Partly Allowed
( 1 ) THIS Letters Patent Appeal is preferred against the judgment of the learned single Judge in A S No. 1247 of 1980. The first appellant Lakkakula venkateswarlu was the seoond defendant in the suit O S No. 6/77 on the file of the district Court Warangal which was initially instituted in the Court of the subordinate Judge at Warangal in June 1972. The plaintiff is one Sardar Ajab singh the first respondent herein and the first defendant is Lakkakula Laxmamma, the mother of the 2nd defendant. The third defendant in the suit is Gopaiah and is the father of the 2nd defendant- appellant. In the ensuing discussion, we will refer to the parties as they are arrayed in the suit.
( 2 ) THE plain tiff (first respondent) filed the suit for specific performance of an agreement of sale dated 1 3-4-68 executed by the first defendant Laxmamma and Gopaiah (third defendant) on behalf of his son Venkateswarlu (2nd defendant- 1st appellant ). The plaintiff stated in the plaint that he purchased 1363 sq. yds. in Warangal that, that was purchased earlier by the third defendant Gopaiah in the name of his wife Laxmamma and in the name of his son Venkateswarlu. The earlier purchases were under registered sale deeds Document Nos. 1260/63 and 1259/63 dtd. 31-8-63 and 21-8-63 respectively. According to the plaintiff a composite agreement was entered into in respect of the land covered by the above two sale deeds and the said agreement was executed in his favour by the first defendant on her behalf and the third defendant on behalf of his son Venkateswarlu. The agreement was for a total consideration of Rs. 13. 000/ -. Rs. 2,5001- was paid on the date of agreement and thereafter several payments were made which in all amounted to Rs. 10. 500/- by 17-11-69 including the advance of Rs. 2,500/- these payments are evidenced by various receipts. The piaintiff alleged that he was ready and willing to pay the balance of consideration and requested Gopaiah to arrange for measurement of the plot and to register the sale deed. Inasmuch as the defendants evaded the plaintiff gave a notice on 20-12-70 which was replied to on 7-1-71. In the reply given on behalf of the first defendant she denied knowledge of the agreement except that it was represented to her by her husband that plaintiff was prepared to pay Rs. 20/- psr sq. yard and her thumb- impression was taken on some document. The 2nd defendant (Venkateswarlu) denied the truth and validity of the transaction. He stated that he got issued a notice through his maternal uncle. The plaintiff therefore sought specific performance, or in the alternative refund of the consideration with interest at 12% p a from the date of payment and damages of Rs. 3,000/ -. The interest amount was said to be Rs. 3,565-87. Under the alternative relief, fund of Rs. 17,066-87 was claimed.
( 3 ) A written statement was filed by the first defendant stating that she had purchased 337 sq yds. earlier on 31-8-63 : that her husband brought some papers and obtained her signature stating that he sold the property at Rs. 20/- per sq. yard and believing the said representation she put her thumb-impression. According to her the third defendant was leading a wayward life. She disputed the execution of the agreement and denied receipt of consideration.
( 4 ) THE minor son (2nd defendant) stated in his written statement that his father purchased the plot of land in his name with the money given to him by his maternal uncle for his benefit. He stated that he was living with his uncle as his father was given to wasteful habits : that the agreement executed by his father is not binding on him ; that his father had no right to alienate the properties : that the same is not for his benefit ; that the alleged payments are not binding on him, and that the suit is liable to be dismissed.
( 5 ) THE third defendant the father filed a separate written statement denying that he had sold any land to the plaintiff nor received any considerati
