1989 Supreme(AP) 132

Andhra Pradesh High Court
Judges : PANDURANGA RAO
Pujari Changal Reddy - Appellant
Versus
M.Santha Kumari - Respondent
Decided On : 03-08-89

The Benami Transactions (Prohibitions) Act, 1988 operates as a bar against the plaintiffs setting up a plea of benami nature of transactions and consequently defendants 3 to 5 (the appellants), who are the vendors of the plaintiffs, are precluded from setting up such a plea.

Headnote:

PARTITION SUIT - BENAMI TRANSACTIONS (PROHIBITIONS) ACT, 1988 - ADVERSE POSSESSION - WILL - REMAND OF SUIT - ISSUES: (1) Whether certain items of property were purchased by the 1st defendant as the manager of the joint family or in his individual capacity as absolute owner? (2) Whether the purchases covered by Exs. B-42 and B-43 and subsequent oral sales in favour of the 1st defendant are for the benefit of the joint family? (3) Whether such a plea can be sustained in the light of the provisions of the Benami Transactions (Prohibitions) Act, 1988? (4) Whether the 1st defendant is entitled to succeed on the plea of adverse possession? (5) In the light of the specific stand taken by the 9th defendant as the legal representative of the 2nd defendant, whether the dispute regarding the will in favour of the 3rd defendant can be gone into in this suit? and (6) Whether the 3rd defendant is entitled for remand of the suit?

Fact of the Case:

Plaintiffs, as purchasers of the property from defendants 3 to 5, filed a suit for partition of the plaint schedule properties into two equal shares and for allotment of one such share to them. Defendants 1 and 2 opposed the suit pleading that Ex. A-1 is a nominal sale deed not supported by consideration. The 1st defendant admitted the alienations made in favour of defendants 6 to 8 but pleaded that he made those alienations as the absolute owner. The defence set up by the defendants is that Ayal Reddy alias Chengal Reddy filed a suit O. S. No. 219/23 on the file of the District munsif s Court, Chittoor against Venkata Reddy (father of defendants 3 to 5), subba Reddy (father of the 1st defendant) and the father of the second defendant, claiming partition in items 4,11,15,17,18,21,22,23,39,40,42 and 45; that the said suit was decreed; that A. S. No. 169/26 on the file of the District Court, chittoor, was dismissed; that the said Ayal Reddy alias Chengal Reddy after dividing his share, mortgaged his property on 31-1-1927 to N. Venkataswamy naidu; that the said Venkatswamy Naidu assigned the debt in favour of budatha Reddy, who filed O. S. No. 433/41 on the file of the District Munsif s court, Chittoor, which was decree; that the 1st defendant paid that amount due under the mortgage decree and retained the properties as exclusive owner; that items 24 and 26 do not belong to the joint family; that items 4 and 16 never belonged to the joint family; that items 17 to 20, half share in items 23 and 40 and half share in items 41, 42 and 46 were purchased from Budatha Reddy in an oral sale and the 1st defendant has perfected his title by adverse possession and that the plaintiffs are not entitled for any share in the properties.

Finding of the Court:

The Court found that there was no joint family between defendants 1 to 5; that the sale deed dated 25-1-1968 marked as Ex. A-1 is not valid and it is not supported by consideration and it is not binding on the 1st defendant as defendants 3 to 5 have no rights in the suit property; that the 1st defendant has prescribed his title to the suit properties and the suit by the plaintiffs is not in time; that proper-Court fee has been paid; that the 1st defendant is not liable to account to the plaintiffs for any period; that the alienations in favour of defendants 6 to 8 are valid and binding on the plaintiffs and that the plaintiffs are not entitled to ask for any share in the properties sold to defendants 6 to 8.

Issues: 1. Whether certain items of property were purchased by the 1st defendant as the manager of the joint family or in his individual capacity as absolute owner? 2. Whether the purchases covered by Exs. B-42 and B-43 and subsequent oral sales in favour of the 1st defendant are for the benefit of the joint family? 3. Whether such a plea can be sustained in the light of the provisions of the Benami Transactions (Prohibitions) Act, 1988? 4. Whether the 1st defendant is entitled to succeed on the plea of adverse possession? 5. In the light of the specific stand taken by the 9th defendant as the legal representative of the 2nd defendant, whether the dispute regarding the will in favour of the 3rd defendant can be gone into in this suit? 6. Whether the 3rd defendant is entitled for remand of the suit?

Ratio Decidendi: 1. The Court found that there was no satisfactory evidence let in by the plaintiffs to show that subsequent to the execution of Exs. B-42 and b-43, certain items of property were purchased by the 1st defendant as the manager of the joint family and that the subsequent oral sales in favour of the 1st defendant by Budatha Reddy cannot be said to be for the benefit of the joint family. 2. The Court held that Section 4 of the Benami Transactions (Prohibitions) Act, 1988 operates as a bar against the plaintiffs setting up a plea of benami nature of transactions and consequently defendants 3 to 5 (the appellants), who are the vendors of the plaintiffs, are precluded from setting up such a plea. 3. The Court found that the 1st defendant is entitled to succeed on the plea of adverse possession as he has been in possession and enjoyment of the suit properties in assertion of his hostile title to that of defendants 3 to 5. 4. The Court held that the dispute with regard to the Will in favour of the 3rd defendant cannot be gone into in this suit, especially when the 3rd defendant seeks to project a case contrary to that taken by the 2nd defendant in his written statement. 5. The Court held that the 3rd defendant is not entitled for remand of the suit as he was given ample opportunity to participate in the proceedings and to let in evidence on matters pertaining to the suit, but failed to avail of that opportunity.

Final Decision: The appeal was dismissed with costs confirming the judgment and decree of the Lower Court.