OUSEPH CHACKO Vs. RAMAN NAIR

JUDGEMENT

(1.) Is sham transaction "benami" Does S.4 of the Benami Transactions (Prohibition) Act, 1988 apply to sham transactions These questions arise for determination in this second appeal.

(2.) The dispute in this case is in respect of small extent of property measuring 40 cents. The suit was for declaration of title and possession of the plaint property and for consequential reliefs. The suit has been decreed on concurrent findings of fact and defendants 1 and 2, have therefore filed this second appeal under S.100 of the Code of Civil Procedure. The learned Judge, who admitted the second appeal and issued notice formulated the following question of law "whether the sale deed by the plaintiff to PW 2 and further transactions, Exts. B1 and B6 are sham and nominal -. The brief facts are these.

(3.) The plaintiff, as owner of the land executed a sale deed in the year, 1963 in favour of one Gopalan Nair, examined in court as Pw.2. The original of the sale deed has not been produced and a copy is not available. But, referring to this deed, Pw.2 Gopalan Nair executed an assignment in favour of the 3rd defendant on 20-6-1968 (Ext.B1). About six years thereafter, on 29-4-1974, the 3rd defendant purported to assign his rights in favour of defendants 1 and 2 under Ext.B6. The plaintiff averred that the original assignment in favour of Gopalan Nair was sham and nominal, not acted upon, that no possession was transferred and that he had no intention to transfer the property in favour of Pw.2 Gopalan Nair or anybody else. He filed the suit, when defendants 1 and 2 attempted to trespass on the property armed with the sale deed in their favour executed in April, 1974. The suit was therefore filed in May, 1974 for declaration of title, injunction and for other reliefs.