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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN & THE HONOURABLE MR.
JUSTICE A.R. LAKSHMANAN
R.Rajagopal Reddy (died) and Others
Versus
Padmini Chandrasekaran (died)
and Others
O.S.A.No.27 of 1980
Decided On : 16-08-1995
PARTITION - Composite family - Partition deed - Material alteration - Bona fide purchaser for value - Benami Transactions (Prohibition) Act, 1988 - Sec.4(1) and 4(2) - Applicability - Held, the partition deed was not sham and nominal and the existence of the composite family or other considerations such Illatom adoption, are not all germane for deciding the rights of the 1st respondent, as according to him, the deed of partition admittedly came into effect only between the members of the three families which had alone right, title and interest in all the properties including the suit property.
Fact of the Case:
The suit property was purchased through a hire purchase agreement from the 3rd defendant-society by the 2nd defendant and in terms of the hire purchase agreement, the 2nd defendant had no powers to assign or part with possession of the property except with the prior permission of the society. The 1st respondent’s husband became a tenant in the year 1952 under the 2nd defendant and continued to be so till 1962 when the 1st respondent/ plaintiff became a tenant in the place of her husband. According to her, one Srinivasalu Reddy used to collect rent throughout and he used to pay the instalments due to the 3rd defendant- society and the balance would be paid as rent. The 1st respondent would submit that the 2nd defendant alone is the absolute owner of the property. However, based on the request made by Srinivasalu Reddy under Ex.P-7 dated 15. 1966, she paid the rents for the months of June and July, 1966, to the appellant since it was pointed in Ex.P-7 that the property was allotted in a subsequent partition between Srinivasalu Reddy and the appellant to the appellant, subsequently at the request of the 2nd defendant, she stopped paying rents to the appellant. Thereafter, she obtained receipts and paid rent from August, 1966 to February, 1967. The 2nd defendant approached her for the sale of the suit property and the 3rd defendant conveyed the property to her after the receipt of the entire amount due from him to the society and executed the sale deed in her favour. The 1st respondent also pleaded that appellants have no right to initiate rent control proceedings for eviction II] Rajagopal Reddy (died) v. Padmini (which were tiled prior to the execution of the sale deed) and that the 2nd defendant had absolutely no right to assign the suit property in any partition and therefore, the entire transaction was sham and nominal.
Finding of the Court:
The partition deed was not sham and nominal and the existence of the composite family or other considerations such Illatom adoption, are not all germane for deciding the rights of the 1st respondent, as according to him, the deed of partition admittedly came into effect only between the members of the three families which had alone right, title and interest in all the properties including the suit property.
Issues: 1. Whether the 1st defendant, 2nd defendant, Srinivasalu Reddy and others are members of a composite Hindu family; whether the suit property belongs to such a composite Hindu family and whether the hire purchase agreement has been taken in the name of the 2nd defendant benami for the benefit of the composite Hindu family? 2. Whether the partition deeds are true or void or sham and nominal? 3. Whether the plaintiff was a tenant of the suit property under the composite Hindu family? 4. Whether Srinivasalu Reddy was collecting the rents from the plaintiff for himself and on behalf of the 2nd defendant? 5. Whether the plaintiff had not accepted Srinivasalu Reddy as the landlord? 6. Whether the attainment of tenancy with respect to the suit property to the 1st defendant was under a mistake of fact as alleged by the plaintiff? 7. Whether the plaintiff had by conduct accepted title in favour of the 1st defendant? Is she estopped from denying title of the 1st defendant? 8. Whether the alleged agreement of sale between the plaintiff and the 2nd defendant is true? 9. Whether the sale of suit property by the 3rd defendant to the plaintiff is true and supported by consideration? 10. Whether the sale of the suit property by the 3rd defendant to the plaintiff was with notice of partition in the composite family and whether the plaintiff is not a bona fide purchaser for value with notice? 11. Whether the plaintiff is entitled to the injunction as prayed for? 12. Whether the plaintiff is entitled to the declaration of title to the suit property? 13. Whether the 3rd defendant is a necessary or proper party to the suit? 114. To what relief or reliefs are the parties entitled?
Ratio Decidendi: The partition deed came into effect in the year 1955 amongst the members of the three families which alone had right, title and interest in all the properties. Various 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 al1 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.
Final Decision: Appeal allowed; Suit dismissed.
AR.Lakshmanan, J.
This appeal is directed by the 1st defendant in C.S. No.110 of 1971 on the file of the Original Side of this Court, against the judgment and decree of the learned Single Judge dated 12. 1979.
2. The appellant/1st defendant died pending this appeal and his legal representatives were brought on record as appellants 2 to 10. The 1st respondent/ plaintiff died during the pendency of this appeal and one of the executors viz., R.Krishnamurthi was brought on record as 8th respondent as the legal representative of the 1st respondent. The 2nd defendant Venugopal Reddy died pending the suit and his legal representatives were brought on record as defendants 4 to 8. who are respondents 3 to 7 in this appeal. The 3rd defendant/ Gandhi Nagar Co-operative House Construction Society Limited is the 2nd respondent in this appeal.
3. The 1st respondent/ plaintiff filed the suit C.S. No.l10 of 1971 for a declaration that she is the sole and exclusive owner and is in possession of the house and ground bearing Door No.40, Fourth Main Road, Gandhi Nagar, Adyar, Madras 20, in her own right and for a permanent injunction restraining the 1st defendant/ appellant, his agents, servants etc., from interfering with her possession of the property and proceeding with any proceeding for eviction of the plaintiff from the property in question and for costs.
4. The plaintiff’s case could be broadly stated as follows: In 1950, the 2nd defendant, who died pending the suit, entered into a hire purchase agreement with the predecessor-in-interest of the 3rd defendant- society under which the 2nd defendant, agreed to purchase a building to be designed and built in the suit plot. In 1952, the plaintiff became a tenant of the suit property under the 2nd defendant. But, subsequently, the 2nd defendant orally agreed to sell the suit property to the plaintiff. Acting on the said oral agreement, the plaintiff from time to time effected valuable improvements to the suit property. Ultimately, there was a written agreement between the plaintiff and the 2nd defendant agreed to nominate the plaintiff authorising her to get the sale deed from the 3rd defendant society. This agreement was fulfilled and the 3rd defendant society executed a registered sale deed in respect of the suit property in favour of the plaintiff on 28. 1967. Pursuant to the sale deed, the plaintiff is in exclusive possession of the suit property as an absolute owner thereof. The 1st defendant denied the title and ownership of the plaintiff and would put forth a title in himself projecting a partition amongst himself, the 2nd defendant, one Srinivasalu Reddy examined as D.W.2, and other parties. The 1st defendant claimed title to the suit property on the basis of (he said partition saying that the suit property was allotted to his branch.
5. The 1st defendant alone filed the written statement and contested the title claimed by the plaintiff. The substance of the contest by the 1st defendant is, Srinivasalu Reddy (D.W.2). the 2nd defendant and the 1st defendant and their respective branches constituted, what is known in the Hindu Law, as a composite family recognised as valid among the Reddi Community. Though the membership with the 3rd defendant Society stood in the name of the 2nd defendant, it was only the composite family that was entitled to a right over the suit property and not the 2nd defendant in his individual capacity. Therefore, the suit property was considered as an item available for division amongst the members of the family. According to:he 1st defendant, the 2nd defendant is only a benamidar for a composite family and the suit property was conveyed by the 3rd defendant society through a sale deed at the instance of the 2nd defendant. Though:he membership with the 3rd defendant society stood in the name of the 2nd defendant, it was only the composite family which was entitled to the suit property and not the 2nd defendant in his individual capacity. On 29. 1955,
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