ABOOBACKER Vs. MUHAMED

JUDGEMENT

(1.) The only question for decision in this Second Appeal is as to whether Ext. A1 assignment of the suit property in the name of the plaintiff is benami for Parammal Kunhunniyan, the father of the plaintiff and defendants 1 to 9 and the husband of the 10th defendant. The courts below have found against the plea of benami raised by the defendants and the plaintiff is given a decree for recovery of possession of the suit - property. It is against this that the defendants have come up in Second Appeal.

(2.) The plaintiff and the 1st defendant are the sons and defendants 2 to 9 are the daughters of deceased Kunhunniyan and the 10th defendant. The plaintiff is the elder son. The suit 'property is 5 cents in extent in R. S. No. 424/1A-9-8 of Malappuram amsom. Several persons occupied small bits of land belonging to the Defence Department of the Government of India. Kunhunniyan was in occupation of the suit - property where he had constructed a building and was conducting a tea-shop. The Defence Department of the Government of India decided to assign the lands to the occupants. Ext. B3 dated 25-10-1941 is a letter by the Tahsildar, Ernad addressed to the Military Estates Officer, Madras Circle, Bangalore, wherein it is stated that R. S. Nos. 424/1 and 430/1A-3-8 of Malappuram amsom have been further sub-divided in conformity with the actual enjoyment and possession of the respective occupants. A list of the occupants of the respective plots together with a sketch, showing the proposed sub-division was enclosed with the letter Ext. B3. The list attached to Ext. B3 shows the occupation of 5 cents of land in R. S.424/1-H by Parammal Kunhunniyan. In pursuance to Ext. B3 the suit - property was assigned in the name of the plaintiff for a consideration of Rs. 10/- as per Ext. A1 sale deed dated 22-5-1944 executed by the Governor General in Council. It is on the strength of the title under Ext. A1 that the plaintiff claims recovery of possession of the suit - property from defendants 1 to 10.

(3.) The defence to the suit is that Ext. A1 assignment though taken in the name of the plaintiff was for the benefit of Kunhunniyan himself and the plaintiff is only a benamidar for him.