Judgement

JAGANNATHA SHETTY, J.:- This appeal, by Special Leave concerns the validity of a decree for specific performance granted by the High Court of Kerala in A.S. No. 525/ 1971.

2. Kadalat Estate, which was the subjectmatter of a suit out of which the appeal arises was originally owned by Fakhir Mohammed Sait. By agreement Ex. A1dated June 8, 1962 Sait agreed to sell the estate to Kasi Chettiar for Rs. 24,500/-. Chettiar paid Rs. 5,500/- as advance on the date of agreement and undertook to pay the balance upon executing the sale deed. The sale deed was to be executed within two months from the date of agreement. The deed, however, was not executed and the matter was dragged on by correspondence between the parties. On December 22, 1963 Sait died leaving behind his wife Sulekha Bai and some minor children. In the neighbouring estate there was a lady Doctor P.W. 2. Mathew is her brother. Kuruvila is her husband. Varghese is her father-in-law. The first three appeared to have contacted Sulekha Bai and also took some steps to purchase the estate. Chettiar was not unaware of their efforts and transactions which we will presently refer.

3. On December 31, 1963 Sulekha Bai and her children executed a registered lease deed Ex. B43 in respect of 57.83 acres of the estate in favour of Mathew. The total extent of the estate is about 462 acres. On the next date there was an agreement Ex. B44 again in favour of Mathew for sale of the entire estate. The price agreed thereunder was Rs. 24, 500/- out of which Rs. 1,500/- was paid in advance. There are conflicting versions from Mathew and Kuruvila in regard to these two transactions. Kuruvila was contending that the agreements Ex.B43 and Ex.B44 were benami in nature, intended for his benefit and it was for him to purchase the estate. But Mathew has denied that version. He was asserting that those transactions were not benami and pursuant thereto, he alone was entitled to purchase the estate. The fact remains that on November 22, 1965, Sulekha Bai and her children sold the estate to Mathew and executed the sale deed Ex.B8 in his name. They received the full consideration from Mathew alone. It was the case of Kuruvila that he was defrauded by his brother-in-law. He appeared to have approached his father for solution. The result was on February 22, 1966 Chettiar assigned his rights under Ex.A1 to Varghese for Rs. 10,000/-. The deed of assignment is Ex.A 24. Varghese paid Rs. 7,500/- in cash and cheques, to Chettiar with a promisory note for balance of Rs. 2,500/-. The assignment deed refers to the sale deed obtained by Mathew. It states that the legal representatives of Sait have sold the estate to Mathew who was fully aware of the agreement for sale Ex.A1. It further states that Mathew contacted Chettiar for the purpose of ascertaining the nature of the agreement and other details regarding the estate.

4. On March 29, 1966 Varghese armed with the deed of assignment Ex.A. 24 along with Chettiar instituted O.S. No. 41 of 1966 for specific performance of the agreement Ex. A1. The suit was instituted against Mathew and legal representatives of Sait. The alternate relief claimed in the suit was for refund of the advance of Rs. 5,500/- paid under Ex.A1with interest thereon and damages for breach of the agreement. That is not all. On October 18, 1967 Kuruvila instituted O.S.No. 119.67 against Mathew, Varghese and Chettiar for declaration that he alone was entitled for all the claims and rights over the Kadalat Estate. as per Ex.B43, Ex.B44 and Ex.B8, and Mathew did not have any claim or right. He has impeached Ex.B43, Ex.B44 as benami and Ex.B8 as fraudulent. In this suit, Kuruvila also disclosed perhaps, unwittingly the purpose of suit O.S.No. 41/1966 filed by his father. He stated :

"It was thought that then at least there would be dawn of wisdom to the 1st defendant and he may adopt the proper course. Accordingly father and 3rd defendant joined together and the 1st defendant and others were made as p