LEELAVATHY NAMBIAR Vs. SANKARA KURUP

JUDGEMENT

(1.) This is an appeal by the plaintiff. The suit O. S. No. 189 of 1981 was filed by her for a declaration that the plaint schedule property belongs to her and for recovery of possession of the same from the defendant with profits and damages. The plaint schedule property having an extent of 38 cents is situated in the middle of the other properties admittedly belonging to the plaintiff. The thavazhi of the plaintiff had Jenm right over the suit property. The property was outstanding on tenancy with one Virundan. Virundan defaulted in payment of rent. A suit O. S. No. 280 of 1960 on the file of the Munsiff's Court, Payyannur was thereupon filed for recovery of the arrears of rent. The suit was decreed and in execution of that decree the plaint schedule property, according to the plaintiff, was purchased by the plaintiff. Ext. A26 dated 15-6-1964 is the sale certificate issued in that regard. The defendant was the agent of the plaintiff as well as her Power of Attorney Holder. Instead of purchasing the property in court auction in the name of the plaintiff what the defendant did was to take it in his own name. This fact was not known to the plaintiffs since the defendant debited the purchase price to the account of the plaintiff and he continued to account to the plaintiff for the profits derived from the suit property, as well. Therefore the plaintiff had no reason to suspect that the name entered in the sale certificate was not that of herself. The agency of the defendant was terminated and he was sent out of service in the year 1976. In the year 1979 the defendant trespassed into the suit property with a view to spite the plaintiff for having terminated his agency. The plaintiff therefore filed the present suit praying for the reliefs referred to above. The main, if not the only defence was that the sale certificate Ext. A26 stood in the name of the defendant and hence it enured to his benefit. It was contended that in the light of the sale certificate Ext. A26, the defendant was the owner of the property The Trial Court clearly found that the defendant purchased the property with the money of Hie plaintiff while he was acting as her agent and Power of Attorney, But the Trial Court dismissed the suit holding that since the sale certificate stood in the name of the defendant, the suit was barred by virtue of S.66 of the Code of Civil Procedure. The claim of the plaintiff that in any view even after the sale certificate dated 15-6-1964 the plaintiff has been in possession of the property and taking income from there and hence the plaintiff has prescribed a title as against the defendant even if the bar under S.66 of the Coda of Civil Procedure is to be put forward, was negatived by the Trial Court on the finding that the possession of the defendant could not be treated as that of the plaintiff for this purpose. On appeal by the plaintiff, the appellate court held that the suit was hit by S.66 of the Code of Civil Procedure and hence the plaintiff is not entitled to recover possession of the property or to get her title declared. The appellate court also found that the case of the plaintiff that/she had actual possession of the property and that she must be taken to have prescribed for a title against the defendant, who was in custody of the property and not in possession thereof was also found unacceptable. Thus the lower appellate court also dismissed the suit. The plaintiff has come up with Second Appeal challenging the dismissal of her suit by the courts below.

(2.) This suit was instituted on 16-11-1981 The suit was dismissed on 24-8-1985. The appeal before the lower appellate court was filed in the year 1985. While the appeal was pending the Benami Transactions (Prohibition) Act, 1988 came into force with effect from 19-5-1988. S.7 of the said Act repealed S.66 of the Code of Civil Procedure. It also repealed S.81, 82 and 94 of the Indian Trust Act. The lower appellate court had therefore to consider the effect of the said Act on the contentions raised by the parties. The lower appellate court took the view that the repeal of S.66 of the Code of Civil Procedure would not make any difference except to widen the scope of the bar created by that Section so as to preclude the plaintiff from pleading that the purchase was benami for her. The lower appellate court therefore proceeded to take the view that the suit itself is hit by S.66 of the Code of Civil Procedure, what would be the effect of the Benami Transactions (Prohibition) Act was not elaborately considered by the lower appellate court.

(3.) S.66 of the Code of Civil Procedure as it stood provided that no suit shall be maintained against any person claiming title under a purchase certified by the court by a person claiming that the purchase was made on behalf of that person. Sub-s.(2) provided an exception to this Rule. The said Sub-section provided that no suit shall be barred to obtain a declaration that the name of any purchase certified in the sale certificate was inserted fraudulently or without the consent of the real purchaser thus saving certain categories of suits from within the bar created by S.66(1) of the Code. The whole of this section now stands repealed. Whether the repeal of the Section would in any way affect suits that were saved by Sub-s.(2) of S.66 of the Code is one aspect that has to be considered in this Second Appeal. The other aspect of course is the scope of the Benami Transactions (Prohibition) Act and the ambit of the operation of S.4 of that Act.