T JAYAMMA Vs. DEVAMMA

JUDGEMENT

(1.) THE appeal filed against the judgment and decree passed in RA 95/ 89 on the file of District Judge, Shimoga arising out of the judgment and decree passed in O. S. No. 118/81 on the file of Additional civil Judge, Shimoga. The appellant is the third defendant in the suit. The first respondent plaintiff filed a suit for declaration of title and for possession of the properties from the defendants 1 and 2 in the suit. The respondent-2 is the legal representative of deceased first defendant and respondent-3 is the second defendant. The suit relates to a house property bearing No. 1417/1427/2648 situate in Shimoga city. The suit property was sold by the appellant in favour of the plaintiff under registered sale deed. The defendants 1 and 3 were in occupation of the house. The defendant No. 1 is the sister of the appellant. After purchase, the plaintiff filed a suit for declaration of title and for possession. The defendants 1 and 2 took up a contention that the third defendant appellant was only an ostensible owner, their mother Smt. Madamma had paid the sale consideration for purchase but the property was nominally purchased in the name of the third defendant. The purchase was intended for the benefit of the first defendant. At the time of purchase, it is said that the first defendant, her husband were financially in a bad shape. Their mother was a widow she was doing milk vending business and had lucrative earnings, she feared that if the property is purchased in her name, the relatives of her husband may lay claim over the property. Further their mother did not intend to purchase directly in the name of the first defendant because she feared that the creditors of the first defendant may lay claim over the property for recovery of their debts. Therefore, in order to secure the property for the benefit of first defendant, the strategy of ostensible purchase in the name of third defendant was revised, however, with a clear intention to benefit the first defendant from the purchase. Thus the defendants 1 and 2 set up the plea of benami. It is also contended that the third defendant had no right to sell the property in favour of the plaintiff.

(2.) THE trial Court upheld the contention of defendants 1 and 2 that first defendants mother had paid the consideration for the purpose of purchase, third defendant was only an ostensible owner and the purchase was for the benefit of the first defendant. The reasons for such benami purchase offered by the defendants 1 and 2 has been accepted by the trial Court. Ultimately found that the third defendant had no real legal title to convey the property in favour of the plaintiff dismissed the suit for declaration of title but granted the alternative equitable relief by directing the third defendant to refund the sale consideration to the plaintiff. The appellate Court concurred with the findings of the trial Court and confirmed the judgment end decree. The plaintiff had also filed an appeal against the judgment and decree in ra 93/89. The appeal of the plaintiff came to be dismissed. The third defendant has now preferred this second appeal. There is no appeal preferred by the plaintiff-first defendant.

(3.) IN this appeal, the following question of law is formulated for consideration in this appeal. (1) Whether or not the Courts below were right in holding that the sale deed Ex. P. 10 under which the appellant purchased the property is a benami transaction, when even according to defendant Nos. 1 and 2 the alleged sale consideration was paid by the mother of the first defendant and the appellant? apart from the point of law framed, an interesting question of law would also arise for consideration: "whether the facts and nature of transaction narrated by defendants 1 and 2 would amount to a plea of benami and whether the plea of benami is a heritable plea by the heirs of the real owner? If so, as a fact whether the benami character of the transaction is established?"