Padmini
Chandrasekharan Vs. R. Rajagopal Reddy [1996] INSC 283 (19 February 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
1996 SCALE (2)766
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
We
have learned counsel on both sides.
This
appeal by special leave arises from the judgment and decree dated August 16, 1995 of the Division Bench of Madras
High Court made in OSA No.27 of 1980.
The
appellant, [since deceased] represented by the executors of her will in C.S.110
of 1971, laid the suit for declaration that she was the sole and exclusive
owner and in possession, in her own right, of the house and ground bearing Door
No.40, Fourth Main Road, Gandhi Nagar, Adyar, Madras-20 as owner thereof and
for permanent injunction restraining R. Rajagopala Reddy, the first defendant
in the suit, or his agents or servants, from interfering with her possession
and enjoyment thereof. Initially, the suit was decreed but on appeal, following
the judgment of this Court in Mithilesh Kumari & Anr. v. Prem Behari Khare
[AIR 1989 SC 1247] holding that Section 4 of the Benami Transactions
[Prohibition] Act, 1988 operates retrospectively, the High Court held that the
second defendant, Venugopal Reddy was a benamidar and the joint family had no
manner of right whatsoever over the suit property. The earlier partition deed
was not valid. On appeal to this Court, the view taken in Mithilesh Kumari's
case was overruled by a three-Judge Bench in this very case and the matter was
remitted to the High Court for a decision afresh. The Division Bench after
considering the evidence held that Venugopal Reddy was allotted the plot by
Madras Cooperative Housing Construction Society [Housing Society]; at a
partition in 1955, the suit property was allotted to Srinivasalu Reddy, elder
brother of Rajagopal Reddy belonging to one branch Petta family;
Venugopal
Reddy was benamidar for joint family. Accordingly, the High Court allowed the
appeal, set aside the decree of the trial Judge and dismissed the suit. Thus
this appeal by special leave.
When the
matter had come up before us for admission, the question raised by Shri Kapil Sibal,
learned senior counsel was that the Division Bench had not considered the
effect of the benami transaction in proper perspective and, therefore, the
decision is vitiated by grave error of law.
Accordingly,
notice was taken by the respondents and they have filed their counter and have
placed on record the entire evidence.
The
only question is whether Venugopal Reddy, the second defendant is a benamidar
of the property belongs to Rajagopal Reddy, the first defendant. It is not in
dispute that on an application made by Venugopal Reddy, the second defendant on
July 9, 1947 to the Housing Society the site was
allotted in his name. Three families were living as composite Hindu Joint
Family who dealt with extensive properties situated in various places including
Thada, Venadu etc. in Andhra Pradesh and in the City of Madras.
Three
families are for short stated as Petta, Vakatti and Eswaravakka families. Rajagopal
Reddy equally applied for allotment to the Housing Society. Venugopal Reddy had
allotment of the suit property. At a partition that took place between three
families on September
29, 1955 under
partition deed [Exh.D-9], several properties including the suit land fell to the
share of Petta family represented by Srinivasalu Reddy and Rajagopal Reddy, the
first defendant.
After
the partition, the appellant paid rents to Srinivasalu Reddy from 1956 to 1957.
Srinivasalu Reddy also paid hire- purchase instalments to the Housing Society.
Pursuant to the letter dated November 7, 1958,
Venugopal Reddy directed the appellant to pay the balance amount and also rents
to Srinivasalu Reddy and accordingly she paid the same. By letter dated February 24, 1961, the husband of the appellant
enquired from Srinivasalu Reddy whether he was prepared to transfer the said
property in his name to which Srinivasalu Reddy declined to execute the sale
deed. Thereafter, the litigation started.
From
these facts, the question that emerges is: whether Rajagopal Reddy is benamidar
for Venugopal Reddy and whether the appellant had the property from Venugopal
Reddy? The Division Bench has recorded a finding, in our view rightly, that the
1955 partition [Exh.D-9] was not questioned by Venugopal Reddy as vitiated by
any fraud or misrepresentation. Therefore, it was not open to the appellant to
question the same. Her plea that she discharge the amount due and payable to
the Housing Society on behalf of the Venugopal Reddy pursuant to an agreement
she had entered into with Venugopal Reddy and thereby she became the owner, has
also been negatived by the Division Bench in our view quite rightly. The only
question, therefore, is whether Venugopal Reddy is the real owner and Rajagopal
Reddy in purchasing the property from the Housing Society? The Division Bench
has recorded, as a fact, the finding based on voluminous evidence that
"[v]arious 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 all 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".
The
partition deed was not a sham or nominal document nor was it vitiated by fraud
or misrepresentation only in respect of one item. There cannot be any ulterior
motive or extraneous consideration for the parties to enter into such a
partition in the year 1955. The partition having remained unquestioned for a
long period of time by any of the parties to the deed, it does not lie in the
mouth of a third party to impeach the nature of the transaction recorded in the
said document when Venugopal Reddy himself had not questioned the partition
deed (Ex.D-9).
From
these facts, the question emerges whether Rajagopal Reddy is only a benamidar
for Venugopal Reddy? In the face of the conduct of the appellant and her
husband in paying the rents to Srinivasalu Reddy, brother of Rajagopal Reddy
and her Husband asking Srinivasalu Reddy of his willingness to transfer the
property in his favour; on payment of rent, the appellant-plaintiff amounts to
have attorned Srinivasalu Reddy as owner of the demised property and,
therefore, she was stopped under Section 116 of the Evidence Act to deny title
of Srinivasalu Reddy, brother of Rajagopal Reddy, the first respondent. The
decree of eviction had by Rajagopal Reddy from the Rent Controller binds the
appellant-plaintiff which had become final, though the question of title was
left open. In those circumstances, the plea of benami is only a collusive one
between her and Venugopal Reddy to defraud Srinivasalu Reddy and Rajagopal
Reddy of the property had in the partition. Though the High Court has not dealt
with this aspect of the matter in proper perspective, from the above
consideration we find that the decree is not vitiated by any error of law.
The
appeal is accordingly dismissed. No costs.
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