SANKARANARAYANAN NAIR Vs. DEVASAHAYAM MANAS

JUDGEMENT

(1.) Three points are urged on behalf of the appellant against whom the courts below have concurred in passing a decree for possession. The appellant is the 2nd defendant in the suit. His mother, under whom he claims, was the 1st defendant. She died pending suit, and the appellant who is her legal representative is now the sole defendant). They are:

(2.) The property in suit, a piece of garden land 3.17 acres in extent held under a possessory mortgage, was part of a holding of about 14 acres which the plaintiff admittedly took on lease from the 1st defendant in 1112 M. E. (1936-37). It was sold in execution of a decree obtained against the 1st defendant (among others) by some third parties; and, from the purchasers in the court auction, the present plaintiff bought it on 8-2-1121 M.E. (24-9-1945) under Ext. D15. In O. S. 651 of 1123 the present defendants sued the present plaintiff for possession of the suit property and other property on the foot of the lease of 1112 M. E. (1936-37) and this suit was tried along with an earlier suit, O. S. 1129 of 1122, a similar suit brought against the present plaintiff by a person to whom the 1st defendant had transferred her rights in the remaining portion of the holding. In defending that suit, the present plaintiff set up his purchase under Ext. D15 and contended that the present defendants were not entitled to recover the property since it no longer belonged to them. On this contention the following issues were joined as issues 4 and 8.

(3.) On the question of benami, there is the concurrent finding of fact of the courts below that the plaintiff's purchase under Ext. D15 was for himself and was not benami for the 1st defendant. It is however argued that this finding is vitiated by an error of law in that both the courts have ignored the effect of the documentary evidence in the case, namely, of Exts. D.1 to D7, D9, D10, D14, D16 and D17. With the exception of Ext. D14, these documents are letters written by the plaintiff to the 1st defendant on various occasions, almost all of them in his capacity as her tenant and referring among other things to the rents due. I have been taken through them and all that they show is that the 1st defendant reposed trust in the plaintiff and used to take his advice regarding the management of her affairs. That the letters do not show that, after his purchase under Ext. D15, the plaintiff asked for an abatement of rent is at best only a circumstance that might tend to the inference that the lease still subsisted in respect of the entire holding, in otherwords, that despite the plaintiff's purchase under Ext. D15 the 1st defendant continued to be the owner of the suit property. It is true that the courts below have not taken note of this circumstance but I do not think that the failure to do so can vitiate their concurrent finding. Nor is the inference a strong inference, for, it does not appear that the plaintiff was cross examined on the pointer given an opportunity to explain why he asked for no abatement.