The mere existence of a familial relationship does not constitute a fiduciary relationship necessary to exempt a transaction from the bar of the Benami Transactions (Prohibition) Act.

JUDGMENT :

A.D. Maria Clete, J.

Both these Second Appeals have been filed by the same appellant. She was the first defendant in O.S. No.69 of 2011 and the petitioner in I.A. No.200 of 2012 filed under Order VII Rule 11 CPC on the file of the learned Subordinate Judge, Poonamallee. Both appeals arise out of the common judgment and decree dated 29.11.2013 passed by the learned III Additional District Judge, Tiruvallur at Poonamallee, in A.S. No.15 of 2013. By that judgment, the First Appellate Court allowed the appeal, set aside the order dated 10.12.2012 in I.A. No.200 of 2012 in O.S. No.69 of 2011 rejecting the plaint under Order VII Rule 11 CPC, restored the suit to file for disposal on merits, and dismissed the cross-objection filed by the appellant. S.A. No.64 of 2014 is directed against the reversal of the order rejecting the plaint, and S.A. No.65 of 2014 is directed against the dismissal of the cross-objection.

2.It is seen that the appellant has preferred two separate Second Appeals against the very same judgment and decree of the First Appellate Court one ostensibly assailing the reversal of the trial Court’s order rejecting the plaint, and the other challenging the dismissal of the cross-objection. However, a careful scrutiny of the memoranda of appeal discloses that both the appeals are virtually identical in their pleadings and grounds, and that the reliefs sought therein are also one and the same.

3. Inasmuch as both the appeals arise out of the very same judgment and decree of the First Appellate Court, albeit containing distinct findings on different points for consideration, ordinarily a single Second Appeal would have sufficed to challenge the same. In the present case, however, two separate second appeals have been preferred against the same judgment and decree, and from the grounds of appeal it is not possible to clearly segregate as to which appeal is specifically directed against the reversal of the order rejecting the plaint and which appeal is directed against the dismissal of the cross-objection.

4.This Court, while admitting both the Second Appeals on 28.01.2014, framed identical substantial questions of law in each of them. Since both the appeals arise out of the same judgment and decree dated 29.11.2013 passed in A.S. No.15 of 2013 by the learned III Additional District Judge, Tiruvallur at Poonamallee, and since the substantial questions of law framed in both the appeals are also identical, this Court is of the view that the appeals may conveniently be heard together and disposed of by a common judgment. Accordingly, both the Second Appeals were taken up together for consideration and are being disposed of by this common judgment.

5. For the sake of convenience, the parties are referred to as they were arrayed before the trial Court.

6.Plaintiffs’ case, in brief is as follows: The plaintiffs instituted the suit seeking a declaration of title and consequential permanent injunction in respect of the suit schedule property. The plaintiffs and the third defendant, who is the husband of the first defendant, are brothers and sister, being the legal heirs of their father, late Murugesa Naicker, who died in the year 1970.

7.According to the plaintiffs, their father, Murugesa Naicker, had borrowed a hand loan from Kuppusamy Naicker and one Natarajan alias Ramadas, the latter having been arrayed as the second defendant in the suit. Pursuant to the said transaction, the second defendant obtained a decree and, in execution thereof, brought the suit property to sale in E.P. No.474 of 1963 in O.S. No.262 of 1962.

8.It is the further case of the plaintiffs that, thereafter, pursuant to a panchayat settlement, a sum of Rs.2,000/- was jointly paid by the plaintiffs and the third defendant to the second defendant, and, consequent thereupon, a sale deed came to be obtained in the name of the first defendant, who is the wife of the third defendant.

9.The plaintiffs contend that the sale deed standing in the name of the first defe