The main legal point established in the judgment is that even if a property is not held benami, a person in a fiduciary position can still be held accountable for bringing about a sale in the name of another by deceit and fraud, if the transaction was intended to benefit the person in the fiduciary position and others.

First appeal filed against the judgment and decree dated 110. 1993 made in O.S.No.776 of 1985 on the file of the Subordinate Judge, Coimbatore

I. Subject matter of litigation

The appeal has been filed by defendants 1 and 2 in O.S.No.776 of 1985 on the file of Sub Court, Coimbatore. The suit has been filed by the respondents in the appeal to declare that Ex.B-27 - purchase of suit property standing in the name of the second defendant on 19. 1985 was done by the first defendant in his wifes name, benami for the benefit of plaintiffs 1 & 2 and the first defendant as joint owners and for partition of the plaintiffs 2/3rd share and for the relief of injunction to restrain the defendants from interfering with their joint possession.

II. Disposition at the trial court

2. The trial court found the transaction to be not benami, but held that the document of purchase was fraudulent in the sense that the first defendant had instead of purchasing the property in the name of the family members, namely, the plaintiffs and the first defendant, had purchased the property in the name of his wife, the second defendant. The plaintiffs, according to the trial Court, was therefore entitled to a 2/3rd share and granted the relief of partition as prayed for. The trial Court also found that the earlier partition decree which had been passed with reference to a panchayat arrangement for division of the house property and the business run at the suit property has to be decreed in terms of the panchayat arrangement. The Court however said that the decree passed by the Sub Court had not become final in the sense final decree had not been passed and therefore the suit was deemed to be still pending.

III. The main grounds of challenge in appeal

3. The Trial Courts Judgment is being assailed by the defendants 1 & 2 on the ground that the suit had been filed on the basis that the document of purchase was benami for the benefit of the family but in the name of the second defendant and when that had been found against by the trial court, the decree granted was clearly erroneous. The plea of fraud attributed to the first defendant had no foundation in the pleadings, especially with no definite particulars as required to be given under O.6 r.4 C.P.C. and the decree of the trial Court suffers from a vice of granting the relief which had no basis. In other words, if the benami theory goes out of reckoning, the appellants have no case of the plaintiffs to anwer.

IV. Consideration of additional evidence in appeal

4. At the appellate Court, the appellants have filed CMP.No.317 of 2007 for reception of some documents as additional evidence under Order 41 Rule 27 CPC. These documents have been originally received subject to proof and relevance and it is essential to dispose of the application before considering the appeal on its merits. These documents have been filed to prove that pursuant to a decree for partition which was passed before the in O.S.No.480/85 on the file of Sub Court, Coimbatore, the mother had originally entered into a deed of partition with her two sons and subsequently there has also been a sale of the property . In both these documents, the fact that the family house has been divided in a particular fashion pursuant to a decree in O.S.No.480/85 was specifically recited. The attempt of the appellant is to point out that the finding of the trial court that the decree in O.S.No.480 of 1985 had not been given effect or in any event the decree had not become final, cannot be true, especially in view of the conduct of the parties namely the plaintiffs themselves enjoying the property along with their mother and treating the earlier partition that had been effected as final and acting upon such a transaction. These documents although already available at the time of the trial, perhaps the defendants did not file because they did not think it could advance the case one way or the other, but having regard to the specific finding given by the Co