GOPALAN NAIR Vs. GANANATHAN KARTHA

JUDGEMENT

(1.) The second appeal is by the 1st defendant in O. S. No. 1055 of 1120 on the file of the District Munsiff's Court, Vaikom against the decree granting a declaration against him that the assignment of the suit property in his favour by P. W. 4 was for and on behalf of the father of the plaintiffs and also declaring that the 2nd plaintiff was entitled to recover possession of the plaint property with past and future mesne profits, which decree was confirmed in appeal by the learned Subordinate Judge of Vaikom.

(2.) To better appreciate the questions raised in the second appeal a few relevant contentions of the parties may be recited. The plaint made the following allegations: The plaint property originally belonged to the tarwad of the father of the plaintiffs, namely, Parameswara Kaimal. One Govinda Kaimal, who was the karnavan of the tarwad, was deposed from karanavasthanam and was being maintained by Parameswara Kaimal and on this ground the tarwad owed him monies. For these amounts a bond was executed by the tarwad karnavan, Velayudha Kaimal, in favour of one Kurian Chacko in 1092 benami for Parameswara Kaimal. Subsequently, a suit was filed by Kurian Chacko to recover the amount and a decree obtained. In execution of the decree the plaint property was attached, sold and purchased by Kurian Chacko benami for Parameswara Kaimal, Parameswara Kaimal meeting all the expenses of the litigation. A little later, since Chacko was in involved circumstances, at his request, the right covered by the court sale was transferred in the name of the 1st defendant benami for Parameswara Kaimal. The 1st defendant is the son inlaw of the 2nd defendant, whose husband was one Thaiparambil Gopala Pillai, a first cousin of Parameswara Kaimal. Parameswara Kaimal had the assignment effected in the name of the 1st defendant in consultation with and on the advice of the said Gopala Pillai, with whom Parameswara Kaimal was on very intimate terms. The transfer by Chacko was in 1106 and thereafter, Parameswara Kaimal continued to meet the further expenses for executing the decree and finally on 14th Kanni, 1110 got delivery of the property. After some time he leased the property to P. W.1, who was in possession thereof for two years. Thereafter, the 2nd defendant's husband, Thaiparambil Gopala Pillai, took the property on lease. The 2nd defendant subscribed for a chit and prized the same. The prize amount was received by Parameswara Kaimal, who agreed to pay the future instalments of the chit. Parameswara Kaimal consequently directed Gopala Pillai to pay the tax of the property and also to pay the instalments of the chit from the income of the properly. In 1117 Gopala Pillai died and Parameswara Kaimal fell ill. Defendants 1 and 2 took possession of the property and a little later in 1118 the 2nd defendant filed a suit against Parameswara Kaimal for the balance of chit subscriptions. That suit was compromised, Parameswara Kaimal having paid the chit amount and the 1st defendant agreeing to surrender the property to Parameswara Kaimal. In 1119 Parameswara Kaimal executed a deed of settlement in favour of the plaintiffs and the plaintiffs filed the suit, out of which the second appeal arises, for recovery of possession of the property, as the 1st defendant failed to surrender the property and claimed title to it himself.

(3.) Defendants 1 and 2 contested the suit. Their contentions, inter alia, were that the suit was not maintainable, because of Sec. 66 of the Code of Civil Procedure; that the purchase in the name of Kurian Chacko was not benami for Parameswara Kaimal; that the transfer by Chacko in the name of the 1st defendant was also not benami but was fully supported by consideration, the consideration having been paid in cash by the 1st defendant; that Parameswara Kaimal was never in possession of the property nor was P. W. 1 or Gopala Pillai and that the 1st defendant dealt with the plaint property after the purchase in his own right, for example, he mortgaged the property in 1112 to the Travancore Sirkar for securing an agricultural loan.