VAITHILINGA VELALAR Vs. VELAYUTHA VELALAR

JUDGEMENT

(1.) THE plaintiff in O.S. No. 1222 of 1972, in the Court of the District Munsif of Pattukkottai is the appellant in the present second appeal. He filed the said suit for mandatory injunction. THE property in question in the suit originally belonged to one Kocharan-s family. THE property bears Survey No. 126|2-B. THEre was an earlier suit, O.S. No. 517 of 1942 filed by the plaintiff against one Ramaswami, the first defendant-s elder brother, who was the kartha of a joint family, and another in respect of the said survey number. THE suit was decreed and in an appeal preferred by the said Ramaswami it was held that one Kulandayyan Nattarasan was entitled to the suit property. THE plaintiff accepting this provision, obtained a sale deed from the legal representatives of the said Kulandayyan Nattarasan on 18th September, 1944, in the name of Govinda Velalar. Ramaswami Velalar then, filed O.S. No. 406 of 1946 in the Court of the District Munsif of Pattukottai impleading Govinda Velalar as the defendant. THE said suit was transferred to the District Munsif-s Court of Mannargudi and was numbered as O.S. No. 127 of 1947. THE claim of Ramaswami Velalar was that the said Govinda Velalar, who was the defendant in the suit, was only his nominee. THE trial Court negatived the said contention and the said decision was confirmed by the Appellate Courts. THE plaintiff claimed that the said Govinda Velalar was only his benamidar and he, therefore took a release deed from the said Govinda Velalar on 5th January, 1970 under Exhibit A-5 so as to avoid any claim in future by the said Govinda Velalar. After the death of Ramaswami, his brother, the first defendant and his (Ramaswami-s) sons became divided and this property was allotted to him. THE property was divided into three plots, east-to-west for convenience and the defendants were said to have forcibly removed the ridges and put up a new ridge. It is in these circumstances, the plaintiff came forward with the present suit for declaration of his title.

(2.) THE first defendant Arunachala Velalar is the father and defendants 2 and 3 are his sons. THEy denied that the plaintiff had any title to the suit property and they also took up a point of limitation.

(3.) THE learned counsel for the appellant Mr. V. Krishnan contended that the lower appellate Court has misconstrued the pleadings, that there was a specific case of benami put forward stating that Govinda Velalar was the benamidar of the plaintiff, that the benamidar had executed a release deed in favour of the plaintiff and that the. plaintiff was, therefore, entitled to the property and to the declaration as prayed for. THE learned counsel for the respondents, Mr. K. Yamunan, submitted that if it was a benami transaction in which the document had been taken in the name of Govinda Velalar, then, no release was necessary and that, if it was not a benami transaction the release would be incompetent to convey title. He refers also to the non-examination of Govinda Velalar as being fatal to the case. According to him, Exhibit A-5 cannot be construed as a conveyance and therefore, the plaintiff-s prayers were rightly negatived by the lower appellate Court.