KANAKARATHNAMMAL Vs. V SLOGNATHA MUDALIAR

JUDGEMENT

(1.) This is an application under Article 133 of the Constitution for leave to appeal to the Supreme Court against the decision of this Court in R. A. 171 of 1951-52. The suit from which the appeal arose was one filed by the present petitioner for the recovery from defendants 1 and 2 of certain items of property to which the plaintiff claimed to have succeeded as her monther's heir and of one jewel from defendant 3 on the ground that it belonged to her, i.e., the plaintiff and had been given to the 3rd defendant's custody by her father. The trial court dismissed the suit against defendants 1 and 2 and granted a decree for the recovery of the jewel on payment of Rs. 109-7-9 claimed by defendant 3 on the footing that he had a lien for the amount. The plaintiff preferred an appeal against the dismissal of the suit as against defendants 1 and 2 as also in respect of the condition imposed that she should pay the amount mentioned above to defendant 3 before she could recover the jewel. As regards the appeal in so far as it related to defendants 1 and 2 the plaintiff confined it to a portion of the suit schedule property and gave up the rest. Respondents 1 and 2 preferred an appeal in so far as the jewel was concerned claiming that it belonged to the estate of the plaintiff's father, defendant 1 being the executor under the lalter's will and defendant 2 the legatee. This Court dismissed the plaintiff's appeal except in regard to that portion of it which made her liable to pay to defendant 3 the amount for which he claimed a lien. It was held that defendant 3 had no such Hen. The appeal of defendants 1 and 2 in respect of the jewel was dismissed.

(2.) The learned advocate for the petitioner urged before us that the view taken by this Court regarding the main question, i.e., the plaintiff's claim to the suit schedule property other than the jewel (in respect of which she had succeeded) was wrong as it resulted from an erroneous application of the law relating to benami transactions. The property in question undisputedly stood in the name of the plaintiff's mother. The contention put forward by defendants 1 and 2 was that the real owner was the father who admittedly had advanced monies for its pur chase. The learned Judge upheld the plaintiffs contention and came to the conclusion that the plaintiff's mother was the real owner of the property, but ho dismissed that part of the suit on the ground that the plaintiff was not the sole heir and mat as she had not made the other heirs parties to the suit she had to fail. This Court took the view that the plaintiff's father was the real owner, that on his death the property vested in his executor under the will and that she had no claim to the property. Consequently it did not become necessary to go into the question whether the suit should fail on the ground of non-joinder of the other heirs of the plaintiff's mother.

(3.) It is true that some decisions laying down the criteria for judging whether a transaction is a benami transaction or not have been referred to in the judgment of this Court, but essentially it is a question of fact since what was really considered was whether those principles were applicable to the proved circumstances of the case. We therefore find that no substantial question of law as contemplated in the concluding part of Article 133(1) is involved in the proposed appeal, nor do we find any question or circumstance arising in the case which would make it a fit one to appeal to the Supreme Court under Clause (c) of Article 133(1).